REPORT AND RECOMMENDATION
ANDREW J. PECK, United States Magistrate Judge:
To the Honorable Kimba M. Wood, United States District Judge:
Pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, I recommend that the Court summarily dismiss petitioner George Fluellen's habeas corpus petition on the ground that he is not entitled to relief, since his petition is (1) untimely under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and (2) a "mixed" petition.
Petitioner George Fluellen's habeas petition is dated April 14, 1997 and was received by the Court's Pro Se Office on April 21, 1997. (See Petition.) The Petition indicates that on March 14, 1990, Fluellen was convicted of conspiracy, homicide and weapons possession and sentenced to 30 years to life imprisonment. (Petition PP 1-4.) The Appellate Division, First Department affirmed his conviction on June 29, 1993. People v. Fluellen, 194 A.D.2d 486, 599 N.Y.S.2d 574 (1st Dep't 1993). The Court of Appeals denied leave to appeal on December 15, 1993, and denied reconsideration on March 7, 1994. (Petition P 9.) See People v. Fluellen, 82 N.Y.2d 894, 610 N.Y.S.2d 161, 632 N.E.2d 471 (1993), & 83 N.Y.2d 852, 612 N.Y.S.2d 384 (1994).
A writ of error coram nobis, raising ineffective assistance of appellate counsel for not raising ineffective assistance of trial counsel, is pending before the First Department, according to the Petition. (Petition P 11(b).)
Fluellen's federal habeas petition is dated April 14, 1997 and was received by the Court's Pro Se Office on April 21, 1997.
I. THE AEDPA'S ONE-YEAR STATUTE OF LIMITATIONS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. The AEDPA significantly modified § 2254 for non-death penalty cases. Specifically, the AEDPA instituted a one-year statute of limitations for habeas petitions:
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.
28 U.S.C. § 2244(d)(1) (as amended by the AEDPA).
In Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), the Second Circuit held that "where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA." 107 F.3d at 93. Rather, the Court gave the prisoner a "reasonable time" after enactment of the AEDPA to bring his habeas petition. Id. (finding petition brought 72 days after enactment of AEDPA to be timely).
Here, counting from the Court of Appeal's denial of leave to appeal, the one-year limitation period would have run no later than March 1995. Thus, Fluellen must be allowed a "reasonable time" after the April 24, 1996 enactment of the AEDPA to bring his federal habeas petition. Fluellen did not file his petition, however, until April 14, 1997 (giving him the benefit of the doubt) -- just 10 days short of a year after enactment of the AEDPA. The Court need not decide where between 72 days (upheld in Peterson) and one year the line should be drawn. But if the Second Circuit's Peterson v. Demskie decision is to have any meaning, Fluellen's Petition, filed just 10 days short of a year, is untimely. Under the AEDPA, therefore, Fluellen's Petition should be dismissed with prejudice.
II. IF FLUELLEN'S PETITION IS NOT DENIED AS UNTIMELY, IT SHOULD BE DENIED WITHOUT PREJUDICE AS A MIXED PETITION
Fluellen's Petition concedes that his second habeas ground -- ineffective assistance of appellate counsel -- has not been exhausted in state court because that ground is raised in his pending coram nobis petition. (Petition P 13.) As such, his petition is a "mixed" one and should be dismissed without prejudice.
A. Prior to the Antiterrorism and Effective Death Penalty Act, the Court Was Required to Dismiss "Mixed" Petitions Containing Both Exhausted and Unexhausted Claims
This section discusses the law as to "mixed" petitions in effect prior to enactment of the AEDPA.
A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b).
While pre-amendment Section 2254 did not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of total exhaustion in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The Supreme Court held:
Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.