Rashid v. Khulmann, 97 CIV. 3037(SS).

• Decision Date: 08 January 1998
• Docket Number: No. 97 CIV. 3037(SS).,97 CIV. 3037(SS).
• Citation: 991 F.Supp. 254
• Parties: Ali Abdul RASHID a/k/a Chester Bruce, Petitioner, v. Robert H. KHULMANN, Superintendent, Sullivan Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

991 F.Supp. 254

Ali Abdul RASHID a/k/a Chester Bruce, Petitioner, v. Robert H. KHULMANN, Superintendent, Sullivan Correctional Facility, Respondent.

No. 97 CIV. 3037(SS).

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

January 8, 1998.

COPYRIGHT MATERIAL OMITTED

Ali Abdul Rashid, Dannemora, NY, pro se.

SOTOMAYOR, District Judge.

Respondent moves to dismiss this habeas petition on the ground that the claims asserted by petitioner are barred by the one-year limitations period of § 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217 (April 24, 1996), codified at 28 U.S.C. § 2244(d). Petitioner mailed his petition to the Court 359 days after the effective date of the AEDPA, and over ten years after his conviction became final. For the reasons to be discussed, I grant respondent's motion to dismiss the habeas petition as untimely.

BACKGROUND

Petitioner was convicted on December 22, 1983, following a jury trial in New York State Supreme Court, New York County, of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21(1)) and Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1)), and three counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1)). Petitioner was sentenced to an indeterminate prison term of fifteen years to life on the first count and concurrent terms of six to twelve years on the remaining counts. Petitioner is currently incarcerated at Sullivan Correctional Facility.

Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department, on the grounds that 1) the state failed to establish his guilt beyond a reasonable doubt, 2) the trial court improperly allowed introduction of evidence of uncharged crimes, 3) the trial court's sentencing as a second felony offender was tainted by flaws in the plea to the predicate offense, 4) the sentence imposed was harsh and excessive, 5) petitioner was denied effective assistance of counsel, and 6) the trial court erred in charging the jury on permissible inferences regarding intent. On May 27, 1986, the Appellate Division affirmed petitioner's conviction. People v. Bruce, 120 A.D.2d 993, 502 N.Y.S.2d 567 (1st Dep't 1986). On September 11, 1986, the New York State Court of Appeals denied petitioner leave to appeal. People v. Bruce, 68 N.Y.2d 810, 507 N.Y.S.2d 1027, 499 N.E.2d 876 (1986). Petitioner did not file a petition for certiorari with the United States Supreme Court. Petitioner did file a petition pursuant to CPL § 440.20 in the Supreme Court, New York County, which petition was denied on December 31, 1985; petitioner did not appeal this denial. Petitioner also states that he filed another § 440.20 petition on April 18, 1997. Although the state authorities deny having received this petition, for purposes of this motion to dismiss the Court will assume that the petition was in fact filed.

On April 18, 1997, petitioner mailed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent submitted its motion to dismiss on September 5, 1997, and petitioner opposed the motion on or about September 23, 1997. Respondents submitted an affidavit in reply on October 27, 1997, and petitioner submitted a further response on November 9, 1997.

DISCUSSION

Petitioner filed this petition after April 24, 1996, the effective date of the AEDPA. The AEDPA amended the habeas corpus statute to require that habeas petitions "be filed no later than one year after the completion of state court review." 28 U.S.C. § 2244(d)(1)(A) (1997). However, "[t]ime during which a properly filed state court application for collateral review is pending is excluded from the one year period." Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996); see 28 U.S.C. § 2244(d)(2). The Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997), recognized that it would be unfair to deny access to the federal courts to prisoners who did not have notice of the new time limits of the AEDPA. Although other circuits have ruled that "habeas petitioners should have a full year after the effective date of the AEDPA to file their petitions in federal district court," Lindh v.. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); United States v. Simmonds, 111 F.3d 737 (10th Cir.1997); Calderon v. United States District Court for the Central District of California, 112 F.3d 386, 389 (9th Cir.1997), this Circuit has held that "a habeas corpus petitioner is entitled to a `reasonable time' after the effective date of the AEDPA to file a petition." Peterson, 107 F.3d at 92. Furthermore, "in circumstances ... where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA." Peterson, 107 F.3d at 93.

Following Peterson, district courts in this circuit have found petitions filed near the end of the year following the enactment of the Act to be untimely.¹ See, e.g., Acosta v. Artuz, 985 F.Supp. 438, 439 (S.D.N.Y. 1997) (petition untimely when filed 359 days after AEDPA and three years after conviction became final); Hill v. Keane, 984 F.Supp. 157, 159 (E.D.N.Y. 1997) (358 days after AEDPA, two years after conviction); Howard v. Lacy, No. 97 Civ. 2286, 1997 U.S. Dist. Lexis 19185, at *10, 1997 WL 749390, at *3 (S.D.N.Y. Dec. 4, 1997) (340 days after AEDPA, eleven years after conviction); Wong v. United States, No. CV 97-2234, 1997 WL 793107, at *1, 1997 U.S. Dist. Lexis 19947, at *4 (E.D.N.Y. Nov. 20, 1997) (365 days after AEDPA, five years after conviction); Hairston v. United States, No. CV 97-2212, 1997 WL 793108, at *1, 1997 U.S. Dist. Lexis 19948, at *3 (E.D.N.Y. Nov. 18, 1997) (365 days after AEDPA, twenty years after conviction); Pacheco v. Artuz, No. 97 Civ. 3171, 1997 U.S. Dist. Lexis 18257, at *5, 1997 WL 724774, at *2 (S.D.N.Y. Nov. 17, 1997) (358 days after AEDPA, thirteen years after conviction); Reese v. Greiner, No. 97 Civ. 5622, 1997 U.S. Dist. Lexis 17641, at *3-4, 1997 WL 694716, at *2 (S.D.N.Y. Nov. 6, 1997) (eleven months after AEDPA, six years after conviction); Reid v. Greiner, No. 97 CV 1852, 1997 U.S. Dist. Lexis 19257, at *6-7, 1997 WL 694723, at *2 (E.D.N.Y. Nov. 3, 1997) (341 days after AEDPA, four years after conviction); Santana v. United States, 982 F.Supp 942, 943 (S.D.N.Y. 1997) (306 days after AEDPA, three years after conviction); Avincola v. Stinson, No. 97 Civ. 1132, 1997 U.S. Dist. Lexis 17078, at *6, 1997 WL 681311, at *2 (S.D.N.Y. Oct. 29, 1997) (266 days after AEDPA, five years after conviction); Garcia v. New York State Dep't of Correctional Services, No. 97 Civ. 3867, 1997 U.S. Dist. Lexis 17079, at *7, 1997 WL 681313, at *2 (S.D.N.Y. Oct. 28, 1997) (350 days after AEDPA, three years after conviction); United States v. Terry, No. 97-CV-522, 1997 U.S. Dist. Lexis 16606, at *7, 1997 WL 662477, at *2 (N.D.N.Y. Oct. 20, 1997) (350 days after AEDPA, three years after conviction); White v. Garvin, No. 97 Civ. 3244, 1997 U.S. Dist. Lexis 15577, at *7, 1997 WL 626396, at *3 (S.D.N.Y. Oct. 7, 1997) (341 days after AEDPA, nineteen months after conviction); Degrijze v. Artuz, No. CV 97-2258, 1997 U.S. Dist. Lexis, at *3, 1997 WL 720756, at *1 (E.D.N.Y. Oct. 1, 1997) (355 days after AEDPA, three years after conviction); Ross v. Artuz, No. CV 97-3564, 1997 U.S. Dist. Lexis 16238, at *3, 1997 WL 720754, at *1 (E.D.N.Y. Oct 1, 1997) (325 days after AEDPA, two years after conviction); Reynoso v. Artuz, No. 97 Civ. 2797, 1997 U.S. Dist. Lexis 14896, at *2, 1997 WL 605119, at *1 (S.D.N.Y. Oct. 1, 1997) (345 days after AEDPA, three years after conviction); Nucci v. Artuz, No. CV 97-2352, 1997 U.S. Dist. Lexis 16235, at *3-4, 1997 WL 720773, at *1 (E.D.N.Y. Sept. 30, 1997) (363 days after AEDPA, six years after conviction); Posada v. United States, No. CV 97-2506, 1997 U.S. Dist. Lexis 16233, at *3, 1997 WL 720757, at *1 (E.D.N.Y. Sep. 30, 1997) (363 days after AEDPA, two years after conviction); LaTorres v. Walker, No. 97 Civ. 3392, 1997 U.S. Dist. Lexis 14931, at *5, 1997 WL 605105, at *2 (S.D.N.Y. Sept. 29, 1997) (352 days after AEDPA, four years after conviction); Byas v. Keane, No. 97 Civ. 2789, 1997 U.S. Dist. Lexis 14926, at *4, 1997 WL 605106, at *2 (S.D.N.Y. Sept. 29, 1997) (329 days after AEDPA, five years after conviction); Yeung v. Artuz, No. 97 Civ. 3288, 1997 WL 572908, at *2 (S.D.N.Y. Sept.10, 1997) (362 days after AEDPA, one year after conviction); see also id. (collecting earlier cases).

The Second Circuit in Peterson also cautioned, however, that "we do not think that the alternative of a `reasonable time' should be applied with undue rigor." Peterson, 107 F.3d at 93. Accordingly, courts in this circuit have found petitions filed after the effective date of AEDPA to be timely where the petition was filed well before the conclusion of the one year period following the effective date of the Act or soon after state review concluded. See Peterson, 107 F.3d at 93 (petition filed seventy-two days after the effective date of the Act considered reasonable where direct state review concluded in 1978); Morillo v. Crinder, No. 97 Civ. 3194, 1997 U.S. Dist. Lexis 18295, at *6, 1997 WL 724656, at *2 (S.D.N.Y. Nov. 17, 1997) (petition timely when filed 350 days after effective date of AEDPA, but only 370 days after conviction became final); Jones v. Artuz, No. CV 97-2394, 1997 U.S. Dist. Lexis 15581, at *2-3 (E.D.N.Y. Sept. 13, 1997) (petition timely when filed 357 days after AEDPA, but only fourteen months after conviction became final); Higgins v. Strack, No. CV 97-2226, 1997 U.S. Dist. Lexis, at *2-3 (E.D.N.Y. Sept. 12, 1997) (petition timely when filed 361 days after AEDPA, but only eighteen months after conviction became final); Rivalta v. Artuz, No. 96 Civ....