Opinion
03 Civ. 3314 (LAP) (AJP).
July 15, 2003.
REPORT AND RECOMMENDATION
The Court sua sponte recommends dismissal of petitioner Geoffrey Rodriguez's March 25, 2003 habeas corpus petition as time barred by the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
FACTS AND ANALYSIS
Petitioner Geoffrey Rodriguez was convicted on September 14, 1998 in Supreme Court, New York County (Justice Leslie Crocker Snyder) of, inter alia, two counts of second degree murder and sentenced to a total of one hundred years to life imprisonment. (Dkt. No. 2: Petition ¶¶ 1-5.)
The First Department affirmed Rodriguez's conviction on November 30, 2000 and the New York Court of Appeals denied leave to appeal on January 11, 2001. People v. Rodriguez, 277 A.D.2d 170, 171, 716 N.Y.S.2d 570, 571 (1st Dep't 2000), appeal denied, 96 N.Y.2d 138, 722 N.Y.S.2d 805 (2001). Thus, the AEDPA's one year limitation period began to run ninety days later — on April 11, 2001 — when the time expired to file a certiorari petition with the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 150-51 n. ¶ (2d Cir.),cert. denied, 534 U.S. 924, 122 S.Ct. 279 (2001); accord, e.g., Martin v. Walker, 02 Civ. 5880,2002 WL 31509876 at *1 n. I (S.D.N.Y. Nov. 12, 2002) (Peck, M.J.) ( cases cited therein).
Rodriguez filed a C.P.L. § 440 motion in State Supreme Court on November 29, 2001. (Pet. ¶ 12(a) Ex.: 11/29/01 C.P.L. § 440 Motion.) Between April 11, 2001 and November 29, 2001, 232 days of the one year limitation period had run. The C.P.L. § 440 motion tolled the limitation period while it was pending. 28 U.S.C. § 2244(d)(2); see, e.g., Martin v. Walker, 2002 WL 31509876 at *1 n. 3 ( cases cited therein). It did not, however, re-start the limitation period. E.g., Smith v.McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000); accord, e.g., Martinez v.Keane, 02 Civ. 9030, 2003 WL 21254422 at *1 (S.D.N.Y. May 30,2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142,2002 WL 31852827 at *13 n. 16 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) ( cases cited therein), report rec. adopted, 2003 WL 151988 (S.D.N.Y. Jan. 21, 2003) (Berman, D.J.).
Thus, the limitation period was tolled from November 29, 2001 until the state court denied the C.P.L. § 440 motion on October 24, 2002. (Pet. ¶ 12(a)(6).) Rodriguez's petition does not indicate that he appealed from the trial court's § 440 decision. The period between October 24, 2002 and the filing of Rodriguez's federal habeas petition on March 25, 2003 (the date he gave it to prison authorities to mail) is 152 days.
If he did appeal it, he should submit proof of same and move for reconsideration of this Report Recommendation within ten days pursuant to S.D.N.Y. Local Civil Rule 6.3.
Thus, a total of 384 (232 plus 152 days) ran and were not tolled. Accordingly, Rodriguez's petition is barred by the AEDPA's one year limitation period and should be denied.
Rodriguez's request for appointment of counsel (Dkt. No. 1) accordingly also should be denied.
CONCLUSION
Rodriguez's habeas petition should be denied as barred by the AEDPA's one year limitation period, and a certificate of appealability should not be issued.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15,16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 5557-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).