The opinion of the court was delivered by: Gary L. Sharpe Chief United States District Judge
On June 21, 2012, petitioner was directed to file a written affirmation explaining why the statute of limitations should not bar his petition. Dkt. No. 6, Decision and Order, Sharpe, J., Jun. 21, 2012. Petitioner has filed the required affirmation. Dkt. No. 9, Petitioner's Affirmation in Compliance with Court Order ("Affirmation"). For the reasons that follow, the petition is dismissed as time-barred.
A. State court proceedings
Petitioner was convicted in 1998 in Schenectady County Court of second degree murder and other, related charges. Dkt. No. 1, Petition ("Pet.") at 2; People v. Shelton, 270 A.D.2d 647 (3d Dep't 2000). As part of his sentence, petitioner was ordered to pay restitution to the victim's family in the amount of $2,000 to cover burial expenses. Dkt. No. 1, Ex. M, Sentencing Transcript ("Sent. Tr."), at 33-34. The sentencing court also ordered that "any money" that accrued in petitioner's inmate account was "to be taken out and distributed to the family on a periodic basis until such time as the $2,000 is paid." Id. at 33. Petitioner's conviction was affirmed, and the New York Court of Appeals denied leave to appeal on May 31, 2000. Pet. at 2; People v. Shelton, 270 A.D.2d 647 (3d Dep't. 2000), lv. denied 95 N.Y.2d 804 (2000).
The Schenectady County Court denied petitioner's motion to vacate his conviction, brought pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on November 10, 2008. Shelton v. Smith ("Shelton I"), No. 9:09-CV-01151, Dkt. No. 14, Ex. S, Decision and Order, Drago, J. On March 25, 2009, the Appellate Division, Third Department, denied petitioner's application for a writ of error coram nobis. Shelton I, Dkt. No. 14, Ex. Y, Decision and Order on Motion.
Based upon the exhibits petitioner has attached to his current petition, a copy of the Uniform Sentence and Commitment order detailing the restitution order was sent to him on July 29, 2009. Dkt. No. 1, Ex. B, letter dated July 29, 2009 from Chief Clerk, Schenectady Supreme and County Court, to petitioner. He then sought a copy of the sentencing transcript from both his correctional facility and the sentencing court. Id. at Ex. C, letter dated Oct. 4, 2010 from petitioner to Victoria Rizzo; Ex. D, letter dated Nov. 8, 2010 from petitioner to Hon. Richard C. Giardino. In an Standing Order dated November 16, 2010, the Schenectady County Court denied petitioner's request for copies of the restitution order and sentencing minutes, and advised him regarding the proper procedure to obtain those documents. Id. at Ex. E, Standing Order, Drago, J..
On December 30, 2010, petitioner filed a motion in the Schenectady County Court seeking to vacate the 1998 restitution order, arguing that: (1) officials at the Shawangunk Correctional Facility were not following the court's mandate that restitution be deducted from his "prison wages," but were instead deducting the money from "all incoming money as sent from family, friends and associates;" and (2) he was given no notice that restitution would be imposed, and was denied the right to be heard. Dkt. No. 1, Ex. F, Affidavitat 2-4.
On May 2, 2011, the Schenectady County Court denied petitioner's section 440 motion, finding that it lacked jurisdiction and advising petitioner that if he believed the Department of Corrections was "taking funds from his account in error, his remedy is to bring an Article 78 proceeding." Dkt. No. 1, Ex. I, Decision and Order, Drago, J. On May 13, 2011, petitioner then moved under Article 78 for a writ of mandamus "to compel adjudication and resolution of the application to set aside the Order of Restitution." Pet. at 4; Dkt. No.1, Ex. K, letter dated Dec. 23, 2011 from petitioner to Andrew W. Klien, Clerk. His application was apparently denied on October 13, 2011, and leave to appeal that decision was denied by the New York Court of Appeals on February 14, 2012. Pet. at 5; Dkt. No. 1, Ex. J, Matter of Shelton v. Caruso, No. 512758, Decision and Order on Motion, Oct. 13, 2011; Ex. L, Matter of Shelton v. Caruso, No. 2011-1267, Order denying motion for leave to appeal, Feb. 14, 2012.
B. Petitioner's first federal habeas petition
On October 10, 2009, petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 in which he challenged the same 1998 judgment of conviction, of which the currently challenged restitution order was a part. Shelton I, No. 9:09-CV-01151, Dkt. No. 1. On October 21, 2009, petitioner was directed to file an amended petition in which he addressed why his petition should not be dismissed as time-barred and, if he was asking that the court equitably toll the limitations period, he was directed to set forth facts establishing a basis for equitable tolling. Dkt. No. 3, Order, Sharpe, J., Oct. 21, 2009, at 9-10.
On December 12, 2009, petitioner filed an amended petition, and attached a document captioned "Ground Topic," in which he described his various grounds for habeas relief. Shelton I, Dkt. No. 7, Amended Petition, Ground Topic ("Ground Topic"). Petitioner argued that he was tried and convicted without a valid indictment, his trial and appellate counsel erred by not challenging the validity of the indictment, and his attorneys withheld relevant documents from him until May 2008. See Ground Topic at 1-7. In an attempt to overcome the statute of limitations, petitioner argued that because the indictment was allegedly deficient, his conviction was void, which rendered him "actually innocent." Id. at 4. He further argued that because he allegedly did not have copies of the indictment until 2008, this information constituted "new evidence." Id. at 1. The petition was referred to Magistrate Judge Andrew T. Baxter, who recommended that it be dismissed as time-barred. Dkt. No. 18, Rep/Rec., Baxter, M.J., Sept. 16, 2010.
On October 18, 2010, petitioner filed objections to Magistrate Judge Baxter's Report and Recommendation in which he argued that he did not "raise equitable tolling," but was instead claiming that he was actually innocent based upon the copies of the indictment he received in 2008, and that the factual basis for that claim could not have been discovered through the exercise of due diligence. Shelton I, Dkt. No. 21, Objection to Report and Recommendation ("Objection"), Oct. 18, 2010 at 1-5. On June 21, 2011, after considering petitioner's objections, this court adopted Judge Baxter's Report and ...