Parker v. H.L. Hufford H.I./F.C.I. Schuylkill, et al.
| John D. Parker |
| The Attorney General of the State of New York, The district attorney of county of queens, United States of America and Hufford H.I./F.C.I. Schuylkill |
| 1:2011cv03609 |
| July 27, 2011 |
| US District Court for the Eastern District of New York |
| Brooklyn Office |
| Brian M. Cogan |
| Habeas Corpus (General) |
| 28 U.S.C. ยง 2254 Petition for Writ of Habeas Corpus (State) |
| None |
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Filing
9
MEMORANDUM DECISION AND ORDER, The petition is denied as untimely and the case is dismissed. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, a Certificate of Appealability shall not issue re: 1 Petition for Writ of Habeas Corpus. The Court certifies, pursuant to 28 USC sec. 1915(a0(3), that any appeal from this Order would not be taken in good faith and therefore in forma pauperis is denied for purpose of an appeal. The Clerk of the Court is directed to mail a copy of this Order petitioner pro se. (Ordered by Judge Cogan on 8/17/2011) c/m Fwd. for Judgment. (Galeano, Sonia)
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Filing
7
MEMORANDUM DECISION AND ORDER, The instant habeas corpus petition appears to be untimely. Here, petitioner's state court conviction became final 30 days after entry when he waived his right to appeal, i.e., on 8/28/1993. He therefore received th e benefit of the AEDPA "grace period," and had until 4/24/1997, to commence this proceeding. He did not. When he brought his sec. 440.10 motion in state court, his time to commence this proceeding had expired nearly 13 years earlier. Accord ingly, the petition will be time-barred unless there is a basis for equitable tolling. Petitioner is therefore ORDER TO SHOW CAUSE by 8/17/11 why this petition should not be dismissed as time-barred. No response to the petition shall be required at t his time and all further proceedings shall be stayed until 8/17/11 for petitioner to comply with this Order. If petitioner fails to comply with this Order within the time allowed, the instant petition shall be dismissed as time-barred. (Ordered by Judge Brian M. Cogan on 7/27/2011) c/m by chambers. (w/ Affirmation Form attached) (Galeano, Sonia)
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