(W.D.N.Y. 1997) ("It is difficult to see why an extended period of time was necessary to prepare and file a habeas corpus petition based on the same facts" as a previous state collateral motion); (2) whether the petitioner is proceeding pro se or is represented by counsel, see Morillo, 1997 U.S. Dist. LEXIS 18295, at *6, 1997 WL 724656, at *2 (filing pro se "can substantially increase the time involved in preparation of court documents") (petition timely); Rivalta v. Artuz, 1997 U.S. Dist. LEXIS 10282, at *2, n.1, 1997 WL 401819, at *1, n.1 (S.D.N.Y. 1997) (petition filed six months after AEDPA timely "in light of the . . . liberal treatment traditionally conferred by this Circuit on pro se parties"); but see Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177, at *10-11, No. 97 Civ. 2468, 1997 WL 436484, at *4 (S.D.N.Y. Aug. 1, 1997) ("To allow the absence of counsel to extend the filing period would render the 'reasonable' time limitations imposed by the Second Circuit void in the substantial number of pro se habeas corpus petitions brought in this district."); (3) whether the petitioner was pursuing state collateral relief during the post-AEDPA period, see Newton, 1997 U.S. Dist. LEXIS 17511, at *6-7, 1997 WL 752348, at *2; Johnson v. Kelly, 1997 U.S. Dist. LEXIS 15580, at *6-7, No. CV 97-1298 (E.D.N.Y. Sept. 12, 1997); and (4) the difficulty or complexity of the issues raised by the petition; see Carmona v. Artuz, 1997 U.S. Dist. LEXIS 15791, at *15, No. 96 Civ. 8045 (S.D.N.Y. Oct. 3, 1997) (magistrate judge report and recommendation). Generally speaking, petitions filed within a month or two of the one-year anniversary of the AEDPA have been presumed untimely absent compelling explanation. See Pacheco, 1997 U.S. Dist. LEXIS 18257, at *5, 1997 WL 724774, at *2; Garcia, 1997 U.S. Dist. LEXIS 17079, at *7, 1997 WL 681313, at *2.
In this case, petitioner's application is not timely. According to petitioner, he mailed the petition on April 18, 1997, within the one-year period of the AEDPA. Petitioner's mailing, however, was 359 days after the effective date of the AEDPA, and over ten years after his conviction had become final.
The claims raised in this petition are essentially the same as petitioner raised in his state court proceedings. Petitioner is not raising any new claims of unusual difficulty or magnitude. Petitioner offers no explanation as to why he waited ten years after his conviction to file his petition, nor any explanation as to why his petition could not have been filed more expeditiously after the AEDPA was passed.
The fact that the petitioner filed a CPL § 440.20 petition on April 18, 1997, does not serve to make the petitioner's filing more reasonable. It is true that, under 28 U.S.C. § 2244(d)(2), the one year statute of limitations is tolled while a duly filed petition for state collateral review is pending. The tolling provision does not, however, "revive" the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations. Because petitioner's one year period expired in December 1987, his collateral petition filed in 1997 does not serve to revive the limitations period, and petitioner is only entitled to the Peterson reasonable time.
It is true that courts have found pending collateral review to be a factor in determining what length of time is reasonable, see Newton, 1997 U.S. Dist. LEXIS 17511, at *6-7, 1997 WL 752348, at *2. Perhaps if petitioner's § 440.20 petition had itself been filed within a reasonable time after the effective date of the AEDPA, and this federal petition filed expeditiously thereafter, it might serve to make the filing of this habeas petition reasonable. However, that is not the case. Petitioner filed his state petition on April 18, 1997 -- i.e., concurrently with this federal petition. By that time the Peterson reasonable time period had ready lapsed, and the state petition obviously cannot serve to explain away the delay in filing this petition. The petition is therefore untimely under Peterson.
Petitioner also contends that the application of the Peterson reasonable time limit to his petition constitutes a violation of the Ex Post Facto Clause of the United States Constitution.
Petitioner is incorrect. The Ex Post Facto Clause applies only to penal statutes, i.e., "legislative action that retroactively 'punishes as a crime an act previously committed, which was innocent when done,' 'makes more burdensome the punishment for a crime, after its commission,' or 'deprives one charged with crime of any defense available according to law at the time when the act was committed.'" Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-69, 70 L. Ed. 216 (1925)). The statute of limitations created by the AEDPA does not fall under any of the three Beazell categories. Moreover, "even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 2298, 53 L. Ed. 2d 344 (1977); see also Berrios v. United States, 126 F.3d 430, 433 (2d Cir. 1997) (change in procedure by which defendant could apply for reduction in sentence based on superseding Sentencing Guidelines did not constitute ex post facto law). In addition, properly viewed, the imposition of the statute of limitations did not disadvantage the petitioner, because it still left him a reasonable time in which to file his petition -- at most, the disadvantage was that he was required to act in a more expeditious manner than he would have preferred. The Ex Post Facto Clause, however, only prohibits legislative adjustments "of sufficient moment," California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 1603, 131 L. Ed. 2d 588 (1995), and thus "the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage,' nor . . . on whether the amendment affects a prisoner's opportunity to take advantage of provisions for early release, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." 115 S. Ct. at 1602 n.3 (discussing California revisions to its parole review system). The statute of limitations does neither of these two things, and thus does not violate the Ex Post Facto Clause. Accord Rosa, 1997 U.S. Dist. LEXIS 11177, at *11, n.1, 1997 WL 436484, at *4, n.1. At best, petitioner's argument raises a claim that the statute is being construed retroactively without a clear statement of congressional intent, see Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S. Ct. 1483, 1505, 128 L. Ed. 2d 229 (1994). However, Peterson forecloses such a claim.
In summary, I find that the petitioner's filing of a habeas petition within 359 days after the effective date of the AEDPA, and over ten years after the petitioner exhausted his state remedies is "unreasonable" as that term was set forth by the Second Circuit in Peterson.
For the reasons discussed, defendant's motion to dismiss is granted. The petition for a writ of habeas corpus is denied and dismissed.
Dated: New York, New York
January 8, 1998