Opinion
04 CV 4132 (NG) (RLM).
March 31, 2005
OPINION AND ORDER
Pro se petitioner Roberto V. Hamilton applies to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that (1) his 1991 convictions in State court were obtained by a plea that was not knowing and voluntary, and (2) he was denied the effective assistance of counsel during the State court proceedings. For the reasons set forth below, petitioner's application is dismissed as untimely.
FACTS
In satisfaction of two indictments, petitioner pled guilty to attempted criminal possession of stolen property in the third degree and criminal possession of stolen property in the fourth degree on December 18, 1990 in New York Supreme Court, Queens County. On January 11, 1991 he was sentenced to concurrent prison terms of one and one-half to three years. He was released from prison in October 1991, and his parole term ended on March 22, 1996. Petitioner never appealed his convictions. His judgment of conviction, therefore, became final on February 10, 1991. At some point following the end of petitioner's parole term, Immigration and Customs Enforcement (ICE) initiated removal proceedings against petitioner, and he was taken into custody. Although the exact date that this occurred is unclear from the record, petitioner's reply papers allege that, as of January 25, 2005, petitioner had been in the custody of ICE for over thirty two months. Petitioner filed the instant petition for a writ of habeas corpus on September 17, 2004. On October 8, 2004, petitioner filed a motion, pursuant to New York Criminal Procedure Law § 440.10, to vacate his convictions, claiming that his plea was not voluntary and that he was denied the effective assistance of counsel. The motion was denied on February 10, 2005.
Under New York law, a person convicted of a crime has thirty days from the date of his or her sentencing to file a notice of appeal. N.Y. Crim. Pro. L. § 460.10(1)(a). If no appeal is taken, the judgment of conviction becomes final upon expiration of the thirty day period.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996), imposed a one year statute of limitations on the filing of a first petition for habeas corpus relief by a State prisoner. 28 U.S.C. § 2244(d)(1). A prisoner whose conviction became final prior to AEDPA's effective date, April 26, 1996, has a one year grace period after that date in which to file a first habeas petition. Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998). "The 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 this one year period. 28 U.S.C. § 2244(d)(2); see also Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir. 1999) (holding that Section 2244(d)(2) is applicable to the one year grace period). Since petitioner's judgment of conviction became final on February 10, 1991, he had until April 24, 1997 to file a first habeas corpus petition, plus any time tolled under Section 2244(d)(2) or the doctrine of equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (holding that the doctrine of equitable tolling applies to both the one year statute of limitations and the grace period).
Petitioner argues that the limitations period does not begin to run until the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. (Although petitioner mistakenly relies on 28 U.S.C. § 2255(4), which sets forth the limitations period applicable to petitions for collateral review of federal convictions, an analogous provision concerning the period applicable to review of State convictions is set forth in 28 U.S.C. § 2244(d)(1)(D).) The operative fact here, according to petitioner, is that his conviction could serve as the basis for an order of removal. He alleges that he did not become aware of this fact until he was taken into custody by ICE.
Even if the court were to conclude that, through the exercise of due diligence, petitioner could not have become aware of the facts giving rise to his claims prior to the date that he was taken into custody by ICE, his petition would still be untimely. According to petitioner's own allegations, by January 25, 2005, he had already been in the custody of ICE for over thirty two months. Thus, when petitioner filed the instant petition in September 2004, he had been in the custody of ICE for at least twenty eight months, well in excess of the twelve month limitations period. Petitioner's motion for collateral review by the State court was not made until after the instant petition was filed, and petitioner has not demonstrated any basis to warrant equitable tolling of the limitations period. As a result, petitioner's application for a writ of habeas corpus is untimely.
CONCLUSION
For the reasons set forth above, the instant petition for a writ of habeas corpus is dismissed as untimely. Given this result, the court need not address the other grounds of opposition to the petition set forth by respondent. Since petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied pursuant to 28 U.S.C. § 2253(c).SO ORDERED.