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LEE v. ARTUZ

May 21, 1997

DAVID LEE, Petitioner, against CHRISTOPHER ARTUZ, Superintendent of Green Haven Correctional Facility, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Sidney H. Stein, 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 David Lee's habeas corpus petition on the ground that he is not entitled to relief, since his April 18, 1997 petition is untimely under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). *fn1"

 FACTS

 Petitioner David Lee's habeas petition is dated April 18, 1997 and was received by the Court's Pro Se Office on April 24, 1997. (See Petition.) The Petition indicates that on December 15, 1983, Lee was convicted of second degree murder and first degree rape and sentenced to 25 years to life imprisonment. (Petition PP 1-4.) The Appellate Division, First Department affirmed his conviction on May 19, 1988. People v. Lee, 140 A.D.2d 1011, 529 N.Y.S.2d 928 (1st Dep't 1988). (See Petition P 9.) The Court of Appeals denied leave to appeal on August 19, 1988. People v. Lee, 72 N.Y.2d 920, 532 N.Y.S.2d 854, 529 N.E.2d 184 (1988). (See Petition P 9.)

 As previously noted, Lee's federal habeas petition is dated April 18, 1997 and was received by the Court's Pro Se Office on April 24, 1997. It raises the same issue he previously raised on direct appeal -- that his conviction was obtained by the testimony of an accomplice without corroborative evidence. (See Petition P 9(d), P12.)

 ANALYSIS

 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." Id. 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).


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