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McGriff v. Keyser

United States District Court, E.D. New York

June 20, 2017

DEWITT McGRIFF, Petitioner,
v.
WILLIAM F. KEYSER, Respondent.

          MEMORANDUM AND ORDER

          ROSLYNN R. MAUSKOPF, United States District Judge.

         Pro se petitioner, Dewitt McGriff, filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for Burglary and Criminal Mischief. (Pet. for Writ of Habeas Corpus (“Pet.”) (Doc. No. 1) at 1.)[1] For the reasons set forth below, McGriff is directed to submit an affirmation, within sixty (60) days of the date of this Order, showing cause why the petition should not be dismissed as time-barred.

         BACKGROUND

         On August 1, 1997, McGriff was convicted of Burglary and Criminal Mischief and sentenced to an indeterminate term of twenty-five years to life imprisonment following a jury trial in New York Supreme Court, Queens County. (Pet. at 1.) His conviction was affirmed on October 26, 1998 by the Appellate Division, Second Department. (Id. at 2.) On December 17, 1998, his application for leave to appeal to the New York Court of Appeals was denied. (Id.) McGriff did not appeal to the United States Supreme Court.

         On March 1, 2014, McGriff filed a motion for collateral relief pursuant to N.Y. Crim. Proc. Law § 440.10, which was denied on April 22, 2014. (Id. at 3.) On June 23, 2014, he sought leave to appeal to the Appellate Division, Second Department, but was denied. (Id. at 3- 4.) On July 10, 2014, he filed a petition for a writ of error coram nobis, which the Appellate Division denied on February 11, 2015. (Id. at 5.) On June 2, 2015, the Court of Appeals denied leave to appeal. (Id. at 8.)

         McGriff filed the instant petition on August 31, 2015. (Aff. Service (Doc. No. 1-2) at 1.) McGriff alleges that he was delayed in filing his petition because he was transferred from Elmira Correctional Facility to Green Haven Correctional Facility in October 1999 and the Department of Corrections and Community Supervision lost his legal papers. (Pet. at 14.) He asserts that he “made numerous complaints to prison officials with respect to locating his lost legal papers, but to no avail.” (Id.) He states that he was recently provided with legal assistance in filing his post-conviction motions in state court. (Id.) McGriff requests that the statute of limitations be tolled “upon the ground of a state created impediment by DOCCS.” (Id.)

         DISCUSSION

         I. The AEDPA Statute of Limitations

         In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress established a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). The AEDPA provides that the limitations 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 the exercise of due diligence.

28 U.S.C. § 2244(d)(1). A “properly filed” application for state post-conviction or other collateral review tolls the one-year period while ...


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