Opinion
97 Civ. 7290 (LAK)
May 18, 2000
ORDER
Petitioner, a state prison inmate, seeks a writ of habeas corpus. The dispositive issue is whether the petition is timely.
Facts
Petitioner seeks review of November 19, 1993 convictions on two indictments in the County Court, Sullivan County, New York, on charges of assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. He now is serving concurrent sentences of 5 to 15 years on the first degree assault charge, 5 to 15 years on the criminal possession charge, and 2 1/3 to 7 years on the reckless endangerment charge and a consecutive sentence of 1 to 3 years on the second degree assault charge.
Petitioner took no direct appeal from the judgment. On August 4, 1995, he filed a motion to vacate the judgment pursuant to Article 440 of the CPL. The motion was denied on September 7, 1995. He sought leave to appeal to the Appellate Division, but that application was denied on December 1, 1995.
Given these circumstances, petitioner's convictions were final at the time the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective, so petitioner had one year from the effective date of the Act, April 24, 1996, within which to file a federal habeas petition except to the extent that the running of that one year period may have been tolled thereafter.
Petitioner filed another Article 440 petition in the Sullivan County Court on or about May 10, 1996. The motion was denied on June 10, 1996. Petitioner again sought leave to appeal, but that application too was denied by the Third Department on August 19, 1996.
This petition was dated August 14, 1997 and received in the Pro Se Office on August 19, 1997. Giving petitioner the benefit of the mailbox rule, the Court assumes that the petition was filed on August 14.
See Houston v. Lack, 487 U.S. 266 (1988).
Discussion
The one year AEDPA statute of limitations began to run on the effective date of the statute, April 24, 1996. The filing of the second Article 440 petition on or about May 10, 1996 tolled the running of the statute pursuant to 28 U.S.C. § 2244(d)(2). The only question is when that toll ended.
Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998).
Section 2244(d)(2) provides that "[t]he 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 toward any period of limitation under this subsection." The operative word is "pending." Once the Appellate Division, on August 19, 1996, denied petitioner's motion for leave to appeal from the order denying the second of his Article 440 motions, there no longer was any state post-conviction proceeding pending and the limitations period again began to run. Thus, by the time petitioner filed this habeas petition on August 14, 1997, more than one year had elapsed during which the running of the statute had not been tolled.
Sixteen days passed from the effective date of AEDPA until May 10, 1996, the date on which petitioner filed the second Article 440 motion. Another 360 days passed from August 19, 1996, the date on which leave to appeal from the denial of that motion was denied, until August 14, 1997, the presumed date of the filing of this petition.
Petitioner seeks to avoid the inevitable conclusion by arguing that the second Article 440 motion remained pending until petitioner received a copy of the order denying leave to appeal from its denial. He relies upon Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), cert. granted, ___ U.S. ___ (2000). For the reasons set forth by this Court in Ramos v. Walker, 88 F. Supp.2d 233 (S.D.N.Y. 2000), which in all material respects is identical to this case, he is mistaken. Bennett simply does not apply where, as here, petitioner had no further avenues of review open to him.
Pet. Reply Mem. 2-3.
Conclusion
The petition plainly is time barred and therefore is denied. As the case presents no substantial question, a certificate of appealability is denied. The Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915. Accordingly, petitioner's motions for leave to proceed in forma pauperis and for the appointment of Andrea Hirsch, Esq. as counsel also are denied.
SO ORDERED.