Opinion
99 Civ. 4519 (LAK)
March 3, 2000
ORDER
Petitioner was convicted of murder in the second degree in the Supreme Court of the State of New York, Bronx County, and sentenced to a term of imprisonment of 25 years to life on January 19, 1993. The conviction was affirmed by the Appellate Division on September 26, 1995. The Court of Appeals denied leave to appeal on April 6, 1996. By motion dated November 26, 1997, petitioner asked the Appellate Division to vacate its decision on the ground of ineffective assistance of counsel, but the motion was denied on July 23, 1998. Petitioner then filed this habeas petition on May 10, 1999. Respondent moves to dismiss the petition as time barred.
In order to avoid the bar of the statute of limitations, petitioner was obliged to file his federal habeas petition no later than one year after the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct review of the judgment of conviction expired on July 3, 1996, the last date on which petitioner might have filed a timely petition for a writ of certiorari. Accordingly, the statute of limitations expired on July 3, 1997. Moreover, the motion made to the Appellate Division, even assuming it otherwise would have tolled the running of the one year period pursuant to 28 U.S.C. § 2244(d)(2), is immaterial here because the one year period had expired before it was filed.
Respondent's motion to dismiss the petition is granted. As petitioner has raised no colorable claim, the Court denies a certificate of appealability and certifies, pursuant to 28 U.S.C. § 1915, that any appeal herefrom would not be taken in good faith.
SO ORDERED.