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FLUELLEN v. WALKER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


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. ยง 2244(d)(2).

 Fluellen's Petition states that a coram nobis petition is pending before the First Department. (Petition P 11(b).) The Petition does not state when that coram nobis petition was filed. Depending on when it was filed, and whether the AEDPA's "tolling" provision includes second collateral attacks (an issue which I need not address at this time), it is possible that Fluellen's Petition is not time barred. That issue would require further development of the procedural facts. Accordingly, the Court withdraws Point I of its May 21, 1997 Report and Recommendation, but continues to recommend dismissal without prejudice as a mixed petition. (If Fluellen's Petition was timely based upon the state collateral attack staying the limitation period, a new federal habeas petition filed promptly after decision of his state coram nobis petition would also be timely.)

 DATED: New York, New York

 June 10, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge

19970610

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