Opinion
99 Civ. 11990 (DLC) (AJP)
May 16, 2000
REPORT AND RECOMMENDATION
To the Honorable Denise L. Cote, United States District Judge:
Petitioner Daniel Mojica seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his June 19, 1991 conviction in Supreme Court, Bronx County of second degree murder (four counts) and sentence of nine years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Mojica's federal habeas petition is dated September 22, 1999 and was received by the Court's Pro Se Office on October 1, 1999. (Pet. at 2, 7.) Mojica's petition raises coerced confession, Confrontation Clause, and ineffective assistance of trial counsel claims.
By motion dated April 27, 2000 (Dkt. No. 9), the Bronx District Attorney's Office moved to dismiss Mojica's petition as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
For the reasons set forth below, I recommend that Mojica's petition be dismissed as barred by the AEDPA's one-year statute of limitations.
PROCEDURAL BACKGROUND
State Court Proceedings
Mojica was convicted after a jury trial in Supreme Court, Bronx County, of four counts of second degree murder and on June 19, 1991, sentenced as a juvenile offender to concurrent sentences of nine years to life imprisonment. (Pet. ¶¶ 1-4; see also Dkt. No. 9: Affidavit of Assistant District Attorney Nancy D. Killian, dated April 27, 2000, ¶ 6.)
On October 5, 1993, the First Department affirmed Mojica's conviction. People v. Mojica, 197 A.D.2d 358, 602 N.Y.S.2d 121 (1st Dep't 1993). (See also Pet. ¶ 9; Killian Aff. ¶ 8.) While Mojica states that he believes he sought leave to appeal to the New York Court of Appeals, which was denied (Pet. ¶ 9(e)), the State alleges "[u]pon information and belief [that] petitioner did not make an application for leave to appeal to the New York Court of Appeals." (Killian Aff. ¶ 8.) It would appear that the State is correct, since "Keyciting" the First Department decision does not reveal any denial of leave to appeal by the New York Court of Appeals.
Mojica brought two pro se motions to vacate his conviction pursuant to CPL § 440.10 — the first on September 22, 1998, which the trial court denied on November 12, 1998 (Killian Aff. ¶¶ 9-11 Exs. 2-4), and the second on May 21, 1999, denied by the trial court on June 17, 1999 and the First Department denied leave to appeal on August 19, 1999 (Killian Aff. ¶¶ 12-14 Exs. 5-7). (See also Mojica 12/27/99 Aff. at 1.)
Mojica's Present Federal Habeas Petition
Mojica's present habeas petition is dated September 22, 1999 and was received by the Court's Pro Se office on October 1, 1999. (Pet. at 2, 7; see Killian Aff. ¶ 15.)
ANALYSIS MOJICA'S PETITION IS BARRED BY THE AEDPA'S STATUTE OF LIMITATIONS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) 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;
. . . .
(2) 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 any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Mojica's conviction became final before the April 24, 1996 AEDPA effective date. Thus, absent any toll, Mojica would have had to bring his habeas petition within one year after the April 24, 1996 enactment of the AEDPA, i.e., by April 24, 1997. See, e.g., Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998).
The Second Circuit recently confirmed the view, previously taken by this Court and other district courts, that the Ross period of one year after the AEDPA's enactment is subject to tolling from the pendency of state collateral proceedings. Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir. 1999), cert. granted, 120 S.Ct. 1669 (April 27, 2000).
See, e.g., Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 nn. 3-4 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.), cases cited therein.
The Second Circuit also recently confirmed that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Forman v. Artuz, 99 Civ. 9046, 2000 WL 378056 at *3 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Martinez v. Stinson, 98 Civ. 2572, 2000 WL 309980 at *3 (S.D.N.Y. March 27, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. April 29, 1999) (Peck, M.J.), rep. rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.). "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases); accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Forman v. Artuz, 2000 WL 378056 at *3.
Here, Mojica's first CPL § 440.10 motion was filed on September 22, 1998, after the April 24, 1997 expiration of his one-year AEDPA limitation period. His petition, therefore, is untimely.
CONCLUSION
For the reasons set forth above, the Court should dismiss Mojica's federal habeas petition as barred by the AEDPA's one-year statute of limitations.
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 Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. 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 55, 57-59 (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).
Dated: New York, New York May 16, 2000