CPL § 440.10(2)(c); Mabery v. Keane, 939 F. Supp. 193, 199 n.5 (E.D.N.Y. 1996); Bacchi v. Senkowski, 884 F. Supp. 724, 731 (E.D.N.Y. 1995), aff'd 101 F.3d 683 (2d Cir.), cert. denied, 136 L. Ed. 2d 167, 117 S. Ct. 237 (1996). A petitioner, however, cannot evade the AEDPA's limitations period simply by filing procedurally barred motions. See Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997) (CPL § 440.10 motion must be "non-frivolous" in order to be "properly filed" within the meaning of § 2244(d)(2)). Similarly, Hill's motion, dated July 11, 1996, to the Appellate Division for reargument of his appeal was not properly filed because it was untimely. Under the Appellate Division's rules, a motion for reargument must be made within 30 days of the decision unless good cause is shown. 22 N.Y.C.R.R. § 670.6[a]. Hill did not file for reargument until some seventeen months after the appeal had been decided nor did he attempt to show good cause for the delay.
As for Hill's July 20, 1995 application for a writ of coram nobis seeking to vacate the Appellate Division's order affirming the judgment of conviction, that application was denied on October 23, 1995, some six months prior to the AEDPA's enactment and nearly 18 months before the instant petition was filed. Consequently, this collateral attack cannot serve to extend the limitations period.
Where, as here, a state prisoner's time to file under § 2244(d)(1) would expire before or shortly after the effective date of the AEDPA and its one-year limitations period, the Second Circuit has afforded state prisoners a "reasonable time" to file their petition after the enactment date. See Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997). In the case of incarcerated pro se litigants, a petition is deemed filed on the date that the petition and accompanying papers are handed to prison authorities for filing. Houston v. Lack, 487 U.S. 266, 271-72, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988). Here, the petition was turned over to prison authorities on April 17, 1997, some 358 days after the AEDPA's enactment. Hill offers no persuasive reason why he could not have filed the petition earlier.
Hill exhausted his direct appeals on April 26, 1995. He could have filed his habeas petition at any time thereafter. Once the AEDPA became effective on April 24, 1996, Hill had a reasonable time in which to file. Instead, he waited nearly a year to do so. The Court finds that the instant petition was not filed within "a reasonable time" within the meaning of the AEDPA as construed in Peterson. Accord Reese v. Greiner, 1997 U.S. Dist. LEXIS 17641, No. 97-5622, 1997 WL 69416, at *2 (S.D.N.Y. Nov. 6, 1997) (petition untimely when filed "almost one year after effective date of AEDPA"); Reid v. Greiner, 1997 U.S. Dist. LEXIS 19257, No. 97-1852, 1997 WL 694723, at *2 (S.D.N.Y. Nov. 3, 1997) (filing 341 days after effective date untimely); Santana v. United States, 982 F. Supp. 942, 1997 U.S. Dist. LEXIS 17068, 1997 WL 677441, at *2 (S.D.N.Y. 1997) (306 days); Avincola v. Stinson, 1997 U.S. Dist. LEXIS 17078, No. 97-1132, 1997 WL 681311, at *2 (S.D.N.Y. Oct. 31, 1997) (266 days); Garcia v. New York State Dep't of Correctional Servs., 1997 U.S. Dist. LEXIS 17079, No. 97-3867, 1997 WL 681313, at *2 (S.D.N.Y. Oct. 31, 1997) (350 days); Roldan v. Artuz, 976 F. Supp. 251, 1997 WL 569176, at *2 (S.D.N.Y. 1997) (328 days); Morales v. Portuondo, 1997 U.S. Dist. LEXIS 11094, No. 97-2559, 1997 WL 433478, at *2 (S.D.N.Y. Aug. 1, 1997) (335 days).
For the foregoing reasons, the habeas petition is dismissed. Given that the petition is time-barred, the merits of petitioner's claims need not be addressed. The Clerk of the Court is directed to close the case.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
December 22, 1997
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