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Saladeen v. Chappius

United States District Court, W.D. New York

June 20, 2017

ISMAEL AHMAD SALADEEN, Petitioner,
v.
PAUL CHAPPIUS, Superintendent of Elmira Correctional Facility, Respondent.

          ORDER

          LAWRENCE J. VILARDO, UNITED STATEB-DTSTRICT JUDGE

         INTRODUCTION

         The pro se petitioner, Ismael Ahmad Saladeen, was convicted of murder in the second degree in the County Court of Erie County, New York, on December 11, 2001. On March 1, 2016, he filed a petition arguing that his conviction was obtained unconstitutionally and seeking relief pursuant to 28 U.S.C. § 2254. See Docket Item 1. This Court then directed him to show cause why his petition should not be dismissed as untimely, Docket Item 9, and he responded by filing a Timeliness Response Form, Docket Item 10. For the reasons set forth below and in this Court's order of January 25, 2017, Saladeen's petition is dismissed as untimely.

         DISCUSSION

         I. THE STATUTE OF LIMITATIONS UNDER THE AEDPA

         Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one-year period of limitations applies to a state prisoner's petition for a writ of habeas corpus. 28 U.S.C.§ 2244(d)(1). Depending on the circumstances, the period of limitations runs from one of several dates:

(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 the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The period of limitations is tolled while a properly filed application for state "post-conviction or other collateral review" (i.e., a collateral attack) is pending, 28 U.S.C. § 2244(d)(2); it also may be tolled equitably when appropriate. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-36(2013).

         As this Court recognized in its order of January 25, 2017, Saladeen's claims do not appear to raise any issues with respect to 28 U.S.C. § 2244(d)(1)(B)-(D). His response to that order does not suggest otherwise. The timeliness of his claims therefore depends on the date when his judgment of conviction became final, see 28 U.S.C. § 2244(d)(1)(A), and whether there is any basis to toll or avoid the applicable period of limitations.

         II. APPLICATION OF 28 U.S.C. § 2244(d)(1)(A)

         The petition alleges that Saladeen's judgment of conviction was dated December 11, 2001. See Docket Item 1 at 1 (¶ 2(a)). The New York State Supreme Court, Appellate Division, Fourth Department, affirmed the conviction on November 19, 2004, id. at 2 (¶ 9(a)-(f)), [1] and the New York Court of Appeals denied leave on January 27, 2005. Docket Item 1 at 2 (¶ 9(g)).[2]

         Because Saladeen did not seek a writ of certiorari, his conviction became "final" for purposes of 28 U.S.C. § 2244(d)(1)(A) when the time to seek direct review in the United States Supreme Court expired. Epps v. Poole,687 F.3d 46, 49 (2d Cir. 2012); Acosta v, Artuz, 221 F.3d 117, 120 (2d Cir. 2000). Here, Saladeen had 90 days after the New York Court of Appeals entered an "order denying discretionary review" or denied rehearing to seek such review. See Rule 13 of the Rules of the Supreme Court of the United States; Epps, 687 F.3d at 49 n.3; Dove v. Lee, 9:12-CV-738 FJS/CFH, 2015 WL 893071, at *3, n.7 (N.D.N.Y. Mar. 2, 2015). Saladeen offers nothing to dispute this Court's previous observation that, absent any tolling, his conviction became "final" 90 days after January 27, 2005-i.e., on April 27, 2005-and the one-year period of limitations of 28 U.S.C. ยง ...


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