The opinion of the court was delivered by: SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
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). The petitioner filed this petition approximately eleven months after the effective date of the AEDPA, and over six years after exhausting state direct review of his conviction. For the reasons to be discussed, I grant respondent's motion to dismiss the habeas petition as untimely.
Petitioner was convicted on June 15, 1988, following a jury trial in New York State Supreme Court, Bronx County, of Murder in the Second Degree (N.Y. Penal Law § 125.25(3)) and Robbery in the First Degree (N.Y. Penal Law § 160.15(3)). Petitioner was sentenced to an indeterminate prison term of twenty years to life on the murder count and a term of from eight and one-third to twenty five years on the robbery count. Petitioner is currently incarcerated at Sing Sing Correctional Facility.
Petitioner appealed his conviction to the Supreme Court, Appellate Division, First Department, on the grounds that 1) the prosecution failed to establish his guilt beyond a reasonable doubt, 2) the evidence did not corroborate the accomplice testimony, 3) the trial court erred in failing to give a circumstantial evidence charge, and 4) the trial court's sentence was excessive. On August 10, 1989, the Appellate Division affirmed petitioner's conviction. See People v. Alexander, 153 A.D.2d 507, 544 N.Y.S.2d 595 (1st Dep't 1989). On May 3, 1990, the New York State Court of Appeals affirmed. See People v. Alexander, 75 N.Y.2d 979, 556 N.Y.S.2d 508, 555 N.E.2d 905 (1989). Petitioner did not file for certiorari with the United States Supreme Court.
On May 11, 1991 petitioner filed a motion in the trial court, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the conviction on the grounds of ineffective assistance of trial counsel; this motion was denied on July 16, 1991, and the Appellate Division denied leave to appeal on September 26, 1991. See People v. Alexander, No. M-4181, 1991 N.Y. App. Div. LEXIS 12470 (1st Dep't Sept. 26, 1991). Finally, on March 11, 1992, petitioner filed in the Appellate Division for a writ of error coram nobis, raising the same grounds as his unsuccessful § 440.10 motion. The petition was denied on May 14, 1992, see People v. Alexander, 183 A.D.2d 1110, 592 N.Y.S.2d 542 (1st Dep't 1992), and the Court of Appeals denied leave to appeal on August 5, 1992. See People v. Alexander, 80 N.Y.2d 900, 588 N.Y.S.2d 826, 602 N.E.2d 234 (1992).
On March 31, 1997, this Court received the instant petition, dated March 21, 1997, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent submitted its motion to dismiss on July 29, 1997, and petitioner opposed the motion on September 18, 1997. Respondent submitted a reply on November 6, 1997, and the petitioner submitted a sur-reply on November 9, 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.
Following Peterson, district courts in this circuit have found petitions filed near the end of the year following the enactment of the Act to be untimely. See Rashid v. Khulmann, 991 F. Supp. 254, 1998 U.S. Dist. LEXIS 130, at *5, 1998 WL , at * (S.D.N.Y. 1998) (collecting cases). The Second Circuit in Peterson also cautioned, however, that "we do not think that the alternative of a 'reasonable time' should be applied with undue rigor." Peterson, 107 F.3d at 93. Accordingly, courts in this circuit have found petitions filed after the effective date of AEDPA to be timely where the petition was filed well before the conclusion of the one year period following the effective date of the Act or soon after state review concluded. See id.
The Second Circuit in Peterson provided little guidance as to what factors should be considered in determining whether a petition is filed within a reasonable time after the effective date of the AEDPA, except to say 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 . . . ." Peterson, 107 F.3d at 93. The implication of this statement is that the length of time since conviction is a factor to be considered, with more recently convicted petitioners afforded longer time, perhaps even up to one full year. See Morillo v. Crinder, 1997 U.S. Dist. LEXIS 18295, at *5-6, No. 97 Civ. 3194, 1997 WL 724656, at *2 (S.D.N.Y. Nov. 17, 1997) (petition filed 350 days after AEDPA timely because, inter alia, petitioner who filed 370 days after conviction "did not have years to contemplate bringing his petition"); Jones v. Artuz, 1997 U.S. Dist. LEXIS 15581, at *2-3, No. CV 97-2394 (E.D.N.Y. Sept. 13, 1997) (petition filed 357 days after AEDPA not untimely where filed only fourteen months after conviction).
In addition to this factor, the district courts applying Peterson have relied on a number of common factors in making their analysis: (1) whether the federal petition merely restates claims made to the state courts, and thus does not require extensive additional preparation, see Avincola v. Stinson, 1997 U.S. Dist. LEXIS 17078, at *6, No. 97 Civ. 1132, 1997 WL 681311, at *2 (S.D.N.Y. Oct. 29, 1997) (petition filed 266 days after AEDPA untimely because, inter alia, "the claims raised here are identical to those raised in state court"); White v. Garvin, 1997 U.S. Dist. LEXIS 15577, at *5, No. 97 Civ. 3244, 1997 WL 626396, at *2 (S.D.N.Y. Oct. 7, 1997) ("Because petitioner raised the same claims in his prior appeals, he did not have to do much, if any, legal research or writing to complete his petition.") (petition filed 341 days after the AEDPA untimely), Berger v. Stinson, 977 F. Supp. 243, 245 (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. 97-2468, 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 v. Strack, 1997 U.S. Dist. LEXIS 17511, at *6-7, No. CV 97-2812, 1997 WL 752348, at *2 (E.D.N.Y. Oct. 15, 1997); 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 v. Artuz, 1997 U.S. Dist. LEXIS, at *5, No. 97 Civ. 3171, 1997 WL 724774, at *2 (S.D.N.Y. Nov. 17, 1997); Garcia v. New York State Dep't of Corrections, 1997 U.S. Dist. LEXIS 17079, at *7, No. 97 Civ. 3867, 1997 WL 681313, at *2 (S.D.N.Y. Oct. 28, 1997).
In this case, petitioner's application is not timely. The petition was filed, at the earliest, on March 21, 1997
-- almost eleven months after the effective date of the AEDPA, and over six 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 ...