United States District Court, E.D. New York
DORA L. IRIZARRY, District Judge.
Petitioner Ricky Simmons, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ( See Petition ("Pet."), Dkt. Entry No. 1.) Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court has conducted an initial consideration of this petition. and, for the reasons set forth below, determined that the petition appears to be time-barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d)(1). The Court directs petitioner to show cause by NO LATER THAN APRIL 6, 2015 why the petition should not be dismissed as time-barred.
Petitioner was convicted in the Supreme Court of the State of New York, Kings County, of murder in the second degree, burglary in the second degree, and criminal possession of a weapon in the second degree, and was sentenced to a term of imprisonment of 20 years to life. (Pet. ¶¶ 1-5.) On July 25, 2012, the Appellate Division, Second Department affirmed the conviction, see People v. Simmons, 97 A.D.3d 842 (2d Dep't 2012), and the New York State Court of Appeals denied leave to appeal on November 19, 2012, see People v. Simmons, 20 N.Y.3d 935 (2012). Petitioner did not file a writ of certiorari with the United States Supreme Court. (Pet. at 3, ¶ 9(h).) Petitioner filed the instant petition on September 16, 2014.
With the passage of the AEDPA on April 24, 1996, Congress set a one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction. 28 U.S.C. § 2244(d)(1). The one-year period runs from the date on which one of the following four events occurs, whichever is latest:
(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 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 the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). Under subsection (A),  the instant petition appears untimely. Petitioner's conviction became final on or about February 19, 2013, upon expiration of the 90-day period for seeking a writ of certiorari. Saunders v. Senkowski, 587 F.3d 543, 547-49 (2d Cir. 2009); Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). In order to be timely, this petition should have been filed on or before February 19, 2014. Instead, this petition was filed on September 16, 2014, nearly seven months after the one-year limitations period had already expired. Therefore, unless petitioner can show that the one-year statute of limitations period should be tolled, the petition is barred by 28 U.S.C. § 2244(d) as untimely.
A. Statutory Tolling
In calculating the one-year statute of limitations period, "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted." 28 U.S.C. § 2244(d)(2). The post-conviction proceeding, however, does not start the one-year period to run anew. Section 2244(d)(2) merely excludes the time a post-conviction motion is under submission from the calculation of the one-year period of limitation. Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) ( per curiam ). "[A] state-court petition is pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999); see also Carey v. Saffold, 536 U.S. 214, 219-21 (2002).
According to petitioner, he filed a post-conviction motion pursuant to N.Y. Criminal Procedure Law § 440.20 ("440 motion") on August 1, 2013. (Pet. at 4, ¶ 11(b).) However, petitioner does not provide the date the state court issued a decision on the 440 motion and whether he appealed the decision to a higher state court (and, if so, the date he appealed and the date the court issued a decision on the appeal of the denial of the 440 motion). The Court, ...