REENA RAGGI, United States District Judge
On July 17, 2002, Errol Baptiste filed this petition, pro se, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1995 conviction in Kings County. Petitioner's request to proceed in forma pauperis is granted. For the reasons set forth below, petitioner is directed to submit an affirmation, within 60 days of this order, to show cause why the petition should not be dismissed as time-barred.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "Act") signed into law on April 24, 1996, provides in relevant part that:
(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;
(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 postconviction 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).
See Lindh v. Murphy,
521 U.S. 320, 327 (1997) (§ 2244 applies "to the general run of habeas cases . . . when those cases had been filed after the date of the Act").
Petitioner's instant application for habeas corpus relief pursuant to 28 U.S.C. § 2254 may be time-barred under the one-year statute of limitations period proscribed by the Act, which starts to run on the date which the petitioner's state criminal judgment becomes final. Petitioner states he was convicted on November 29, 1995. (Petition at ¶ 2.) The Appellate Division, Second Department, affirmed the conviction on March 23, 1998. See People v. Baptiste, 671 N.Y.S.2d 97 (App.Div. 1998). On May 26, 1998, the New York State Court of Appeals denied petitioner leave to appeal. See People v. Baptiste, 91 N.Y.2d 1005 (1998). A petitioner's judgment of conviction becomes final 90 days from the date the Court of Appeals denied leave to appeal. See Sup.Ct. R. 13.1. See also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
Additionally, petitioner claims that he applied to the Appellate Division, Second Department, for a writ of error coram nobis. (Petition at ¶ 11.) Petitioner does not state the date the application was filed. The Appellate Division, Second Department, denied petitioner's application on October 18, 1999. (Id. at ¶ 11(a)(5-6)); see also People v. Baptiste, 696 N.Y.S.2d 701 (App.Div. 1999). Petitioner also states that he filed a post-conviction motion pursuant to New York Criminal Procedure Law § 440.10. (Petition at ¶ 11(b)(2).) Although petitioner does not give the date on which he filed this motion, he does note that the motion was denied on October 16, 2000. (Id. at ¶ 11(b)(5-6).) Petitioner states that his appeal of this denial is pending, but does not state when he filed this appeal. (Id. at ¶ 11(d).)
Petitioner is hereby directed to show cause by affirmation, within 60 days from the date of this order, why the statute of limitations should not bar the instant petition. Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. Cir. 2000) (petitioner is entitled to notice and an opportunity to be heard before the Court dismisses petition as time-barred). No response from respondent shall be required at this time and all further proceedings shall be stayed for 60 days or until petitioner has complied with this order. Petitioner's affirmation shall include any facts which would support statutory tolling, including the dates he filed his application for a writ of error coram nobis, his post-conviction motion, and his appeal of the denial of his post-conviction motion. Petitioner may attach, if available, a copy of his post-conviction motions and applications as exhibits to the affirmation.
An affirmation form is attached to this order for petitioner's convenience.
Furthermore, the statute of limitations period may be equitably tolled if petitioner can demonstrate that (i) "extraordinary circumstances prevented him from filing his petition on time" and (ii) he "acted with reasonable diligence throughout the period he seeks to toll". Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. Cir. 2000) (per curiam), cert. denied, 531 U.S. 840 (2000) (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 ((2d Cir. Cir. 1996)); see also Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. Cir. 2000) (confiscation of legal papers is sufficient to establish potential basis for equitable tolling). Should petitioner have a basis to ask the Court to equitably toll the statute of limitations, he shall present the facts to the Court in his affirmation.
If petitioner fails to comply with this order within the time allowed, the instant petition shall be dismissed as time-barred.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ______________________________x ERROL BAPTISTE Petitioner, PETITIONER'S -against- AFFIRMATION 02-CV-4216 JAMES J. WALSH, Superintendent, Sullivan Correctional Facility Respondent. ______________________________x
STATE OF __________ } COUNTY OF _________ }SS:
Errol Baptiste makes the following affirmation under the penalties of perjury:
I am the petitioner in this action and I respectfully submit this affirmation in response to the Court's order dated ________. The instant petition should not be time-barred by the one-year statute of limitations because __________________________________
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[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]
In view of the foregoing, it is respectfully submitted that the instant petition should be permitted to proceed.
DATED: _____________ __________________________________ Signature
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