Opinion
02 Civ. 1056 (LAK)
September 3, 2002
ORDER
Petitioner was convicted in New York Supreme Court, New York County, on January 20, 1994 of robbery in the first degree and sentenced principally to a term of imprisonment of six to eighteen years. The conviction was affirmed by the First Department on June 16, 1998, and the New York Court of Appeals denied leave to appeal on October 27, 1998. People v. Montalvo, 251 A.D.2d 136, 672 N.Y.S.2d 738 (1st Dept.), leave to appeal denied, 92 N.Y.2d 950, 681 N.Y.S.2d 481 (1998). In addition, petitioner sought collateral review in the state courts, first by a motion pursuant to N.Y. Crim. Proc. L. § 440.10, which was filed on or about November 16, 1997 and denied on November 30, 1998, and then by an application to the Appellate Division for a writ of error coram nobis, filed on March 12, 2001 and denied on November 1, 2001. By petition received in the Pro Se Office on November 16, 2001 and filed in the Clerk's Office on February 11, 2002, he now seeks a writ of habeas corpus.
Under the Antiterrorism and Effective Death Penalty Act of 1996, petitioner was obliged to file his federal habeas petition within one year after his state conviction became final, excluding under the tolling provision of 28 U.S.C. § 2244(d)(2) any time during which a state post-conviction or collateral review proceeding was pending. Id. § 2244(d).
In this case, the one year limitation period began to run on or about January 27, 1999, the approximate date on which the ninety day period within which petitioner might have filed a petition for a writ of certiorari with the Supreme Court expired following the New York Court of Appeals' denial of his application for leave to appeal from the Appellate Division's affirmance of his conviction on direct appeal. It expired one year later, on or about January 26, 2000. As the Section 440.10 motion was disposed of before the one year period began to run, and the coram nobis proceeding was commenced after the period expired, the tolling provision of Section 2244(d)(2) has no effect here. Accordingly, the petition was filed long after the expiration of the one year period.
As the petition is untimely, it is denied and the proceeding dismissed. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.