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FLUELLEN v. WALKER

May 21, 1997

GEORGE FLUELLEN, Petitioner, against HANS G. WALKER, Superintendent, Respondent.


The opinion of the court was delivered by: PECK

 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.

 FACTS

 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). *fn1"

 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.

 ANALYSIS

 I. THE AEDPA'S ONE-YEAR STATUTE OF LIMITATIONS

 
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 ...


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