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ROLDAN v. ARTUZ

August 11, 1997

JUAN ROLDAN, Plaintiff, against CHRISTOPHER ARTUZ, Superintendent, Defendant.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Deborah A. Batts, United States District Judge:

 For the reasons set forth below, I recommend that the Court dismiss petitioner Juan Roldan's habeas corpus petition on the ground that his March 18, 1997 Petition is untimely under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").

 FACTS

 Petitioner Juan Roldan's habeas petition is dated March 18, 1997, was received by the Court's Pro Se Office on March 27, 1997, and was filed as of April 11, 1997. (See Petition.) The Petition indicates that on October 7, 1986, Roldan was found guilty of murder in the second degree and was sentenced to 25 years to life imprisonment. (Petition PP 1-5.) The Appellate Division, First Department affirmed his conviction without opinion on November 29, 1988. People v. Roldan, 144 A.D.2d 1043, 535 N.Y.S.2d 509 (1st Dep't 1988). (See Petition P 9(a)-(d); see also Affidavit of ADA Jennifer Correale, dated 7/2/97, P 8 & Ex. 3.) The Court of Appeals denied leave to appeal on February 2, 1989. People v. Roldan, 73 N.Y.2d 926, 539 N.Y.S.2d 310, 536 N.E.2d 639 (1989). (See Petition P 9(e); see also Correale Aff. P 9 & Ex. 4.)

 Roldan also brought two collateral attacks on his conviction in state court. On or about May 27, 1991, he filed a C.P.L. § 440.10 motion alleging ineffective assistance of trial counsel. The trial court denied the motion without opinion on July 25, 1991. (Petition P 11(a); Correale Aff. PP 10-12 & Exs. 5-7.) The First Department denied leave to appeal on January 23, 1992. (Correale Aff. P 13 & Ex. 8.) Roldan filed a second C.P.L. § 440.10 motion, based on allegedly newly discovered exculpatory evidence, on December 18, 1992; the trial court denied it on February 16, 1993. (Correale Aff. PP 14-16 & Exs. 9-11; see Petition P 11(b).) The First Department denied leave to appeal on April 22, 1993. (Correale Aff. P 17 & Ex. 12.)

 ANALYSIS

 ROLDAN'S PETITION IS BARRED BY 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 ...


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