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Terry v. Unger

United States District Court, Second Circuit

May 30, 2013

DEAN TERRY, Petitioner,
v.
DAVID UNGER, Superintendent, Respondent.

DEAN TERRY, Petitioner, Pro Se, Willard, NY.

HON. ERIC T. SCHNEIDERMAN, ALYSON J. GILL, ESQ. Attorney General of the State of New York Assistant Attorney General Attorney for Respondents, Albany, NY.

REPORT-RECOMMENDATION AND ORDER

RANDOLPH F. TREECE, Magistrate Judge.

Pro se Petitioner Dean Terry brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on the grounds that (1) his plea was involuntary, (2) his counsel was ineffective, and (3) evidence used against him was obtained pursuant to an unconstitutional search and seizure. Dkt. No. 1, Pet., Grounds One through Three. However, because the Petition was not filed within the period statutorily prescribed under 28 U.S.C. § 2244(d)(1)(A), we recommend that the Petition be DENIED.

I. BACKGROUND

According to Petitioner, on May 14, 2007, he pled guilty to one count of criminal sale of a controlled substance in the third degree, and was sentenced to four and one half years imprisonment to be followed by two years of post release supervision. Pet. at ¶¶ 1-5. On February 19, 2008, Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Department (hereinafter "Appellate Division"). Dkt. No. 10-1.[1] The Appellate Division affirmed the conviction on October 30, 2008. Dkt. No. 10-3. Petitioner filed an application for leave to appeal with the New York State Court of Appeals (hereinafter "Court of Appeals") on December 1, 2008. Dkt. No. 10-4. The Court of Appeals denied that request on January 28, 2009. Dkt. No. 10-5.

Petitioner did not request certiorari from the United States Supreme Court, nor file any request for collateral post-conviction relief. See Pet. at ¶¶ 12 & 14.

II. DISCUSSION

In accordance with the provisions the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas petitions challenging a state court judgment are subject to a one-year statute of limitations. Specifically, 28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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