Collins v. Ercole, No. 10-2331 (2d Cir. 2012)Annotate this Case
In 1988 petitioner was convicted of first-degree robbery. After his release, he was arrested for murder and attempted murder and, in 2001, entered a plea of guilty in New York state court. Treating the attempted murder as a second violent felony, the state court imposed three consecutive terms of 25 years. The Department of Correctional Services determined that an undischarged portion of the robbery prison term should be added to the 2001 sentence. Direct review ended in 2005; from 2005-2008, petitioner pursued post-conviction motions in state court. In 2008, he filed a federal petition for habeas corpus, which was dismissed as untimely under 28 U.S.C. 2244(d)(1). The petition did not mention the DOC sentencing calculation. The Second Circuit affirmed. State applications for post-conviction relief did not toll the one-year statute of limitations. Section2244(d)(2) limits tolling to those applications for post-conviction or other collateral review that are made with respect to the pertinent judgment: the 2001 conviction and sentence. The applications at issue were directed neither to the conviction nor to the sentence; they concerned only a post-conviction administrative determination that the sentence ran consecutively to the earlier undischarged prison term.