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BERGER v. STINSON

August 22, 1997

RICHARD G. BERGER, Petitioner,
v.
JAMES D. STINSON, Superintendent of Great Meadow Correctional Facility, Respondent, and HOWARD R. RELIN, District Attorney of Monroe County, Intervenor.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 On April 16, 1997, petitioner, Richard Berger, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Berger was convicted on June 13, 1986 in New York State Supreme Court, Monroe County, of murder in the second degree. The State has filed an answer to the petition opposing the petition on several grounds. Because I agree with the State that the petition is time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), I conclude that the petition must be dismissed.

 DISCUSSION

 The AEDPA, which became effective on April 24, 1996, amended 28 U.S.C. § 2244, in pertinent part as follows:

 
(1) A 1-year period shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
 
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
 
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed,. if the applicant was prevented from filing by such State action;
 
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
 
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
 
(2) 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).

 To analyze the effect of the AEDPA on the instant case, then, it is necessary to set forth the dates of the relevant events. As stated, petitioner was convicted on June 13, 1986. The Appellate Division, Fourth Department, affirmed his conviction on April 3, 1987. The grounds for that appeal were the prosecution's failure to apprise Berger before trial of the substance of a certain witness's testimony, and ineffective assistance of counsel, neither of which is raised here. The New York Court of Appeals denied leave to appeal on June 18, 1987. The Appellate Division also denied a pro se motion for reargument on November 10, 1987.

 In October 1990, Berger filed a motion for a writ of error coram nobis, based on a claim of ineffective assistance of appellate counsel. The Appellate Division denied the motion on November 2, 1990.

 In June 1994, Berger filed a motion in Supreme Court under N.Y. C.P.L. § 440.10. The ground for the motion was that the prosecution violated its obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to inform Berger of evidence favorable to him, specifically the criminal history of a prosecution witness, James Ryan. While that motion was pending, Berger's attorney also sent the court a copy of a statement of Richard Lindsay, an alleged coconspirator who told the police that Ryan had told him that Ryan committed the ...


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