Raynor v. Dufrain, No. 98 Civ. 0062(WCC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtWilliam C. Conner
Citation28 F.Supp.2d 896
Docket NumberNo. 98 Civ. 0062(WCC).
Decision Date11 December 1998
PartiesWalter B. RAYNOR, Petitioner, v. Charles DUFRAIN, Respondent.
28 F.Supp.2d 896
Walter B. RAYNOR, Petitioner,
v.
Charles DUFRAIN, Respondent.
No. 98 Civ. 0062(WCC).
United States District Court, S.D. New York.
December 11, 1998.

Walter B. Raynor, Malone, New York, petitioner pro se.

Page 897

William V. Grady, Dutchess County District Attorney, Poughkeepsie, New York, Bridget Rahilly Steller, Asst. District Attorney, of counsel, for respondent.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.


Petitioner Walter Raynor brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking to overturn his conviction in County Court, Dutchess County. Respondent contends that the petition should be dismissed because it is barred by the one-year statute of limitations, enacted as part of 28 U.S.C. § 2244 by the 1996 Antiterrorism and Effective Death Penalty Act (hereafter "AEDPA" or "the Act"). Pub.L. No. 104-132, 110 Stat. 1214. We conclude that the petition is, indeed, barred by the one-year statute of limitations, and accordingly, dismiss it as untimely.

BACKGROUND

Petitioner was sentenced on June 10, 1996, following a jury trial in the County Court of Dutchess County on four counts of Criminal Possession of a Controlled Substance in the Third Degree, N.Y.Penal Law § 220.16, and three counts of Criminal Sale of a Controlled Substance in the Third Degree, N.Y.Penal Law § 220.39, and sentenced to five to fifteen years in prison. Petitioner is currently serving his sentence at the Franklin Correctional Facility in Malone, New York.

For purposes of determining the statute of limitations question, a detailed explanation of the procedural history that followed petitioner's conviction is necessary. Following petitioner's sentencing on June 10, 1996, he had thirty days, until July 10, 1996, to file a notice of appeal with the Appellate Division. N.Y. CRIM. PROC. LAW. § 450.10(1) (McKinney 1992) (hereafter "C.P.L."). The clerk of the sentencing court advised petitioner on the record of the necessity of filing an appeal within thirty days, but no such timely notice of appeal was filed. Petitioner claims his failure to file a notice of appeal was due to an error by his attorney, while respondent claims (after conferring with petitioner's public defender) that petitioner expressly told his attorney he did not want to appeal. By a letter to the Appellate Division dated June 23, 1996, however, well before expiration of the thirty-day period for filing a notice of appeal, petitioner did inquire whether the Appellate Division had received a notice of appeal from his attorney. This inquiry was not treated as an actual notice of appeal, and the thirty-day period expired on July 10, 1996.

Consequently, by letter dated July 26, 1996, petitioner made an application for permission to file a late notice of appeal to the Appellate Division, Second Department. On September 23, 1996, petitioner filed a motion in support of his application. Petitioner's application was denied by the Second Department on October 24, 1996. On November 5, 1996, petitioner then sought to appeal the decision of the Appellate Division to the New York State Court of Appeals. On November 20, 1996, the Court dismissed petitioner's application, explaining that the decision of the Appellate Division was not appealable.

Petitioner did not file a petition for certiorari with the United States Supreme Court, nor has he made any state collateral attacks on his conviction. He did, however, file this petition for a writ of habeas corpus on October 28, 1997, claiming: 1) denial of effective assistance of counsel at trial and on appeal; 2) violation of equal protection by the impaneling of an all-white jury; and 3) denial of access to his attorney at the time of arrest.

DISCUSSION

I. Interpreting What Constitutes "the Conclusion of Direct Review" under § 2244(d)(1)(A)

With limited exceptions, a prisoner seeking a writ of habeas corpus must submit his petition no more than one year after the judgment against him becomes final. 28 U.S.C. § 2244(d) provides in relevant part that:

(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

Page 898

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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(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.1

For the purpose of deciding whether the petition is timely, we must determine when the one-year period began running, and this compels us to decide when the "judgment became final by the conclusion of direct review or the expiration of time for seeking such review." § 2244(d)(1)(A).

Petitioner's judgment of conviction was rendered in the County Court of Dutchess County on June 10, 1996. Although petitioner had a right to appeal from this judgment of conviction (See C.P.L. § 450.10(1)), state law required him to take an appeal within thirty days, obligating him to file and serve his notice of appeal no later than July 10, 1996. C.P.L. § 460.10(1). Because petitioner did not file a timely notice of appeal, the judgment of conviction became final on July 10, 1996, the date of "the expiration of time for seeking [direct] review." Thus, the time for filing of a habeas petition expired on July 10, 1997. § 2244(d)(1)(A). The present habeas petition, filed October 28, 1997, was over three months late.2

However, petitioner contends that the time for filing the habeas petition was extended by his motion for leave to file a late notice of appeal. He argues that the one-year time limitations period did not begin...

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33 practice notes
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), citing Kelly, 163 F.3d at 541; Beeler, 128 F.3d at 1288-1289; see also Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y. 1998) ("Equitable tolling is warranted when some event effectively prohibits the petitioner from pursuing habeas, such as ......
  • Tellado v. United States, No. 3:09cv1572 (MRK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 13, 2011
    ...to compliance with AEDPA's limitations period if it “effectively prohibits the petitioner from pursuing habeas.” Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y.1998) (explaining that “[e]quitable tolling is warranted” when a petitioner is thwarted by events beyond his control “such as th......
  • Lopez v. Wilson, No. 01-3875.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 7, 2005
    ...provision of the AEDPA would thus be effectively eliminated, a clearly unacceptable result. Id. at 519 (quoting Raynor v. Dufrain, 28 F.Supp.2d 896, 898 At the same time, Searcy noted that "[t]his court has recently made clear, however, that even a Rule 26(B) application, though part of the......
  • Rhodes v. Senkowski, No. 98 Civ. 2221(NRB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 21, 2000
    ...906 F.2d 910, 917 (2d Cir.1990); Johnson v. AL Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984); Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y.1998). To determine whether a statutory time period is a jurisdictional requirement or a limitations period subject to equitable to......
  • Request a trial to view additional results
33 cases
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), citing Kelly, 163 F.3d at 541; Beeler, 128 F.3d at 1288-1289; see also Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y. 1998) ("Equitable tolling is warranted when some event effectively prohibits the petitioner from pursuing habeas, such as ......
  • Tellado v. United States, No. 3:09cv1572 (MRK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 13, 2011
    ...to compliance with AEDPA's limitations period if it “effectively prohibits the petitioner from pursuing habeas.” Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y.1998) (explaining that “[e]quitable tolling is warranted” when a petitioner is thwarted by events beyond his control “such as th......
  • Lopez v. Wilson, No. 01-3875.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 7, 2005
    ...provision of the AEDPA would thus be effectively eliminated, a clearly unacceptable result. Id. at 519 (quoting Raynor v. Dufrain, 28 F.Supp.2d 896, 898 At the same time, Searcy noted that "[t]his court has recently made clear, however, that even a Rule 26(B) application, though part of the......
  • Rhodes v. Senkowski, No. 98 Civ. 2221(NRB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 21, 2000
    ...906 F.2d 910, 917 (2d Cir.1990); Johnson v. AL Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984); Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y.1998). To determine whether a statutory time period is a jurisdictional requirement or a limitations period subject to equitable to......
  • Request a trial to view additional results

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