Dennis v. The People Of The State Of New York

Filing 2

ORDER, Accordingly, petitioner is granted 30 days from the date of this order to either: (1) file an affidavit which states that he wants this Court to treat the motion as a petition pursuant to 28 USC sec. 2254; or (2) withdraw the motion rather tha n have it converted to a petition under (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 US 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 and ma de 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 file app lication 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. In addition, petitioner must show cause by written af firmation, within 30 days of the date of this order, why his petition should not be dismissed as barred by the statute of limitations; and/or dismissed as petitioner is no longer in custody pursuant to the conviction he seeks to herein challenge. If petitioner fails to respond within 30 days of the date of this order, the motion shall be deemed a petition pursuant to sec. 2254 and dismissed without prejudice. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any request to appeal from this order in forma pauperis would not be taken in good faith. (Ordered by Judge Sandra L. Townes on 11/3/2009) c/m (Galeano, Sonia)