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FLUELLEN v. WALKER

June 10, 1997

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


The opinion of the court was delivered by: PECK

SUPPLEMENTAL REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Kimba M. Wood, United States District Judge:

 On May 21, 1997, I issued a Report and Recommendation recommending "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."

 On sua sponte re-reviewing Fluellen's Petition, I modify my May 21, 1997 Report and Recommendation to delete the first ground; the Petition, however, still should be dismissed without prejudice under the second ground, as a mixed petition.

 In enacting the one-year statute of limitations, the AEDPA provides that the "time during which a properly filed application 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." 28 U.S.C. § 2244(d)(2).

 DATED: New York, New York

 June 10, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge

19970610

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