966 F.Supp. 239 (S.D.N.Y. 1997), 97 Civ. 1626, Valentine v. Senkowski

Docket Nº:97 Civ. 1626
Citation:966 F.Supp. 239
Party Name:Valentine v. Senkowski
Case Date:June 10, 1997
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 239

966 F.Supp. 239 (S.D.N.Y. 1997)

Robert VALENTINE, Petitioner,

v.

Daniel SENKOWSKI, Superintendent, Clinton Correctional Facility, et al., Respondents.

No. 97 Civil 1626(CLB).

United States District Court, S.D. New York.

June 10, 1997

Page 240

Robert Valentine, Clinton Correction Facility, Dannemora, NY, for Petitioner.

Attorney General of State of N.Y., Rockland County Dist. Atty., for Respondents.

MEMORANDUM & ORDER

BRIEANT, District Judge.

By petition received by this Court on February 13, 1997, Petitioner Robert Valentine, a New York state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his judgment of conviction entered in the Supreme Court of New York, Rockland County, on January 24, 1992, based on his plea of guilty pursuant to a plea agreement. This Court concludes that the Petition is not time-barred under 28 U.S.C. § 2244(d)(2) as amended April 26, 1996, but denies the petition on the merits.

Petitioner was convicted of the crimes of Criminal Possession of a Controlled Substance in the Second Degree and Grand Larceny in the Third Degree. In accordance with the terms of his plea agreement, Petitioner was sentenced to a prison term of eight and one-third years to life, which he is currently serving. A civil penalty in the amount of $152 and restitution of $4,300 was also assessed. Petitioner is currently incarcerated at Clinton Correctional Facility in Dannemora, New York.

Petitioner's direct appeal was deemed withdrawn by the Appellate Division of the Supreme Court of New York on January 20, 1993, following submission of papers by petitioner's attorney and having no papers filed in opposition or in relation thereto. A coram nobis motion by the appellant to vacate the decision and reinstate the appeal, to vacate the sentences imposed and for leave to have new counsel assigned to prosecute such appeal was denied on November 21, 1996. People v. Valentine. An application by the defendant-appellant for a certificate to appeal to the State of New York Court of Appeals pursuant to Section 460.20 of the New York Criminal Procedure Law was denied on December 12, 1996, People v. Valentine, 89 N.Y.2d 931, 654 N.Y.S.2d 733, 677 N.E.2d 305 (1996). Mr. Valentine thereafter filed this petition for a writ of habeas corpus.

The claim is not barred by the one-year limitation period established in 28 U.S.C. § 2244(d)(1). While 28 U.S.C. § 2244(d)(1), as amended April 26, 1996, prescribes a "1-year period of limitation" for an application for a writ of habeas corpus, "by a person in custody pursuant to the judgment of a state court," section 2244(d)(2) tolls the limitations period during "the time ... which a properly filed application for State post-conviction or other collateral review with respect to the...

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