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January 8, 1998

ALFREDO RODRIGUEZ, Petitioner, against CHRISTOPHER ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: SOTOMAYOR


 Respondent moves to dismiss this habeas petition on the ground that the claims asserted by petitioner are barred by the one-year limitations period of § 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, 110 Stat. 1217 (April 24, 1996), codified at 28 U.S.C. § 2244(d). Petitioner mailed his petition to the Court over one year after the effective date of the AEDPA, and almost ten years after exhausting his state remedies. For the reasons to be discussed, I grant respondent's motion to dismiss this habeas petition as untimely.


 Petitioner was convicted on November 13, 1985, following a jury trial in New York State Supreme Court, Bronx County, of Murder in the Second Degree (New York Penal Law § 125.25(1)). Petitioner was sentenced to an indeterminate prison term of twenty-five years to life. Petitioner is currently incarcerated at Green Haven Correctional Facility.

 Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department, on the grounds that the judge improperly charged the jury regarding reasonable doubt, conflicting testimony, and intent. On January 22, 1987, the Appellate Division affirmed petitioner's conviction. People v. Rodriguez, 126 A.D.2d 994, 510 N.Y.S.2d 958 (1st Dep't 1987). On March 11, 1987, the New York State Court of Appeals denied petitioner leave to appeal. People v. Rodriguez, 69 N.Y.2d 885, 507 N.E.2d 1104 (1987). Petitioner did not file a petition for certiorari with the United States Supreme Court, nor has he made any state collateral attacks on his conviction.

 On May 9, 1997, the Pro Se Office of this court received petitioner's instant petition for a writ of habeas corpus under 28 U.S.C. § 2254, which was dated April 28, 1997. Respondent submitted its motion to dismiss on September 22, 1997, and petitioner opposed the motion on October 10, 1997. Respondents submitted an affidavit in reply on November 10, 1997, and petitioner submitted a supplemental reply on or about December 1, 1997.


 Petitioner filed this petition after April 24, 1996, the effective date of the AEDPA. The AEDPA amended the habeas corpus statute to require that habeas petitions "be filed no later than one year after the completion of state court review." 28 U.S.C. § 2244(d)(1)(A) (1997). However, "time during which a properly filed state court application for collateral review is pending is excluded from the one year period." Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996); see 28 U.S.C. § 2244(d)(2). The Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997), recognized that it would be unfair to deny access to the federal courts to prisoners who did not have notice of the new time limits of the AEDPA. Although other circuits have ruled that "habeas petitioners should have a full year after the effective date of the AEDPA to file their petitions in federal district court, " Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other grounds, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997); United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997); Calderon v. United States District Court for the Central District of California (Beeler), 112 F.3d 386, 389 (9th Cir. 1997), this Circuit has held that "a habeas corpus petitioner is entitled to a 'reasonable time' after the effective date of the AEDPA to file a petition." Peterson, 107 F.3d at 92. Furthermore, "in circumstances . . . 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." Peterson, 107 F.3d at 93.

 The instant petition, challenging a conviction that was final prior to the effective date of the AEDPA, was dated and mailed April 28, 1997, see Pet. Mem. Opp. at 1, more than one year after the effective date, and is therefore time-barred. *fn1" Peterson held that where, as here, the application of the AEDPA time limits would have cut off the ability to file immediately upon the AEPDA's taking effect, petitioners would be allowed a reasonable time thereafter in which to file. What Peterson did not specifically state is that "a reasonable time" cannot be longer than a year, but that is Peterson's clear implication. To hold otherwise would be to place those whose convictions became final before the effective date of the AEDPA in a better position than those whose convictions became final after the effective date -- to whom the AEDPA statute of limitations indisputably applies. Taking the instant petition as an example, if petitioner's conviction had become final on April 28, 1996, the Peterson reasonableness inquiry would be irrelevant, and the petition (dated April 29, 1997) would be unquestionably time-barred under the one-year statute of limitations imposed by the AEDPA. Clearly, the fact that petitioner has had even longer to file cannot serve to extend the limitations period. Because the instant petition was filed more than one year after the effective date of the AEDPA, it is time-barred under Peterson. Accord Montalvo v. Portuondo, 1997 U.S. Dist. LEXIS 19288, at *5, No. 97 Civ. 3336, 1997 WL 752728, at *2 (S.D.N.Y. Dec. 4, 1997).

 II. Suspension Clause

 However, petitioner asserts that application of the statute of limitations to deny hearing his first federal petition is unconstitutional, relying upon Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177, No. 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997) ("Rosa I "), certified for interlocutory appeal, 1997 U.S. Dist. LEXIS 18310, 1997 WL 724559 (S.D.N.Y. Nov. 19, 1997) ("Rosa II "), appeal docketed, No. 97-2974 (2d Cir. Dec. 31, 1997). In Rosa, Judge Robert W. Sweet held that the imposition of time limitations "is an unconstitutional 'suspension' of the writ of habeas corpus." Rosa I, 1997 U.S. Dist. LEXIS 11177, at *19, 1997 WL 436484, at *7. To the extent that Rosa decides that the AEDPA's one-year statute of limitations is in all cases an unconstitutional suspension of the writ, the Court respectfully declines to follow Judge Sweet's holding. *fn2" Unlike Judge Sweet, this Court does not find that a statute of limitations applied to habeas petitions per se "deprives [petitioners] of the ability to obtain any collateral review in a federal court of the merits of [their] claim[s]." Rosa I, 1997 U.S. Dist. LEXIS 11177, at *19, 1997 WL 436484, at *7.

 The Suspension Clause states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it." U.S. Const. art. I, § 9, cl. 2. The insistence of the framers on including this provision in Article I is testament to the belief that the Great Writ "'has been for centuries esteemed the best and only sufficient defense of personal freedom.'" Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 1299, 134 L. Ed. 2d 440 (1996) (quoting Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95, 19 L. Ed. 332 (1869)).

 The Court first notes that there is considerable debate as to whether the "privilege of the writ" which may not normally be suspended includes the power of federal courts to issue the writ on behalf of state prisoners, or whether federal habeas for state prisoners is wholly statutory. See Rosa I, 1997 U.S. Dist. LEXIS 11177, at *30-34, 1997 WL 436484, at *10-11 (summarizing debate); see also Steiker, supra note 4. Moreover, there is a question as to whether the scope of the habeas writ as known to the Framers was limited only to questions of jurisdiction and inquiries into extrajudicial detention, see Fay v. Noia, 372 U.S. 391, 399-414, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963) (Brennan, J.); id. at 449-455 (Harlan, J., dissenting); Gary Peller, In Defense of Federal Habeas Corpus Relitigation, 16 Harv. C.R.-C.L. L. Rev. 579 (1982); Paul A. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963); and if so, whether the expansion of the scope of inquiry available under habeas beyond the more narrow confines known in 1789 falls within the Suspension Clause's sweep. See, e.g., Swain v. Pressley, 430 U.S. 372, 384-86, 97 S. Ct. 1224, 1231-32, 51 L. Ed. 2d 411 (1977) (Burger, C.J., ...

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