Opinion
No. CV-03-6508 (FB).
August 11, 2004
RICHARD A. PAUL, Pro Se, No. 186-21-436, Buffalo Federal Detention Facility, Batavia, NY, For the Petitioner.
CHARLES J. HYNES, ESQ., District Attorney for Kings County, BY: MARIE-CLAUDE P. WREN, ESQ., Assistant District Attorney, Brooklyn, NY, For the Respondent.
MEMORANDUM AND ORDER
Alleging ineffective assistance of counsel, pro se petitioner Richard Paul ("Paul"), a citizen of Jamaica, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is untimely; hence, it is dismissed.
I.
A jury found Paul guilty of second-degree robbery on February 10, 1987. His conviction became final on January 25, 1989, ninety days after the New York Court of Appeals denied his application for leave to appeal. See People v. Paul, 72 N.Y.2d 1048 (1988) (denying leave to appeal); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (direct review concludes when a petition for writ of certiorari to the United States Supreme Court is denied or when the ninety day time limit for filing such a writ expires).
At the time of Paul's sentencing, Paul was not subject to deportation for having committed second-degree robbery. See 8 U.S.C. § 1251(a)(4) [1987] (listing removable offenses). In 1994, with the passage of the Immigration and Technical Corrections Act ("INCTA"), Congress categorized theft and burglary offenses as aggravated felonies, thereby subjecting aliens who committed such offenses to deportation. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IRRIRA"), which made INCTA retroactive regardless of the date of conviction. See 8 U.S.C. § 1101(a); Brown v. Ashcroft, 360 F.3d 346, 353 (2d Cir. 2004).
On March 27, 2000, the Immigration and Naturalization Service initiated removal proceedings against Paul based on his 1987 conviction and the enactment of INCTA and IRRIRA. On or about July 25, 2000, an Immigration Judge ordered that Paul be removed. The Board of Immigration Appeals ("BIA") affirmed the removal order on January 11, 2001. Paul's appeal from the BIA's decision is currently pending before the Second Circuit.
Paul's § 2254 petition, filed on December 16, 2003, alleges that his attorney was ineffective for failing to request that the judge who sentenced him in 1987 issue a judicial recommendation against deportation ("JRAD").
II.
28 U.S.C. § 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 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.
Paul's petition implicates subsections (A) and (D). Under either subsection, however, Paul's petition is untimely.
Because Paul's conviction pre-dates the 1996 enactment of the Antiterrorism and Effective Death Penalty Act, his deadline for filing a § 2254 petition was extended to April 25, 1997, one year after the enactment date. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Paul missed the deadline by some six and a half years. 2. 28 U.S.C. § 2254(d)(1)(D)
Paul has been aware of the factual predicate of his claim — that his attorney did not seek a JRAD on his behalf — since the day he was sentenced in 1987. Even assuming arguendo that Paul did not have reason to realize that his attorney's alleged failure constituted ineffective assistance until 1996, when IIRIRA made INCTA retroactive, his § 2254 petition is still untimely. See Lambert v. California, 355 U.S. 225, 228 (1957) (acknowledging the "well-established rule that a citizen is presumed to know the law, and that `ignorance of the law will not excuse.'"). Further, even if the Court were to assume for purposes of § 2254(d)(1)(D) that Paul could not have known of the existence of his claim until March 27, 2000, when the INS initiated removal proceedings against him, his petition, filed on December 16, 2003, is still not timely.
CONCLUSION
The petition is denied. A certificate of appealability will not issue because Paul has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.