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March 4, 1998

JOHN P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: SOTOMAYOR



 Petitioner Alexander moves this Court to reconsider its judgment of January 13, 1998, dismissing his petition for a writ of habeas corpus as time-barred. Alternatively, the petitioner requests a Certificate of Appealability (COA), pursuant to 28 U.S.C. § 2253(c). For the reasons to be discussed, the motion for reconsideration is denied, but the request for a COA is granted in part.

 Alexander was convicted on June 15, 1988, in the New York State Supreme Court, Bronx County, of Murder in the Second Degree and Robbery in the First Degree. Petitioner's direct state review was completed, and his conviction therefore "final" for purposes of 28 U.S.C. § 2244(d)(1), on August 1, 1990, ninety days after the New York Court of Appeals affirmed his conviction. On March 21, 1997, Alexander filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254.

 In an Opinion and Order dated January 14, 1998, this Court denied and dismissed the petition as time-barred. See Alexander v. Keane, 991 F. Supp. 329, 1998 U.S. Dist. LEXIS 350, 1998 WL 17737 (S.D.N.Y. 1998). The Court dismissed the petition because it was not filed within a "reasonable time" after the effective date of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1217 (April 24, 1996) ("AEDPA"), and was thus untimely under the Second Circuit's decision in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997). The Court also rejected challenges that the AEDPA time limitations (as interpreted by Peterson) could not be applied to the petitioner on retroactivity grounds, and that the time limitations were unconstitutionally applied to petitioner in violation of the Ex Post Facto and Suspension Clauses of Article I. Finally, this Court addressed the issue of whether a claim of actual innocence could overcome the time bar of a statute of limitations, but decided that even if it could, Alexander had not met the standards required for such a claim.

 On January 29, 1998, the petitioner filed this motion. Petitioner argues the Court did not adequately consider two claims in dismissing his habeas petition. First, relying on a statement made by the district court in Mitchell v. Cain, 971 F. Supp. 1064, 1066 (W.D. La. 1997), petitioner asserts that Janet Reno, the United States Attorney General, has issued a directive to all United States Attorneys that they should concede that there is a full one-year grace period after the effective date of the AEDPA for filing motions under 28 U.S.C. § 2255. Second, the petitioner argues that by dismissing his petition as time-barred, this Court inappropriately applied the AEDPA statute of limitations retroactively. Neither claim merits reconsideration.

 As for the first argument, this Court has no evidence, apart from the cited opinion, that the purported order by the Attorney General has in fact been given. However, even if given, such an order is irrelevant to this case. Whether the United States chooses to waive the statute of limitations defense in § 2255 cases does not in any way bind the state of New York to do likewise with respect to petitions for habeas corpus under 28 U.S.C. § 2254. In Mitchell, the case cited by petitioner, the district court referred to the alleged Attorney General order only as persuasive authority for giving state habeas petitioners a full one year grace period; that court, however, had no binding precedent to the contrary because the Fifth Circuit had not decided the issue. See Mitchell, 971 F. Supp. at 1065, 1066. In contrast, the Second Circuit has decided in Peterson that a full year grace period need not be given, and that precedent, not Mitchell, is binding upon this Court.

 As to the second issue, this Court did address directly retroactivity in its January 14 Order. See Alexander, 991 F. Supp. at , 1998 U.S. Dist. LEXIS 350, at *11, 1998 WL 17737, at *4 ("Petitioner's arguments that the AEDPA statute of limitations should not be applied retroactively have been addressed by the Second Circuit in Peterson and in Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996), and are therefore foreclosed."). In Reyes, the Second Circuit held that the AEDPA statute of limitations provisions would not apply to petitions filed before the Act's effective date -- i.e., April 24, 1996 -- but reserved the question of whether and to what extent the statute of limitations would apply to petitions filed after that date when the underlying judgment of conviction became final (the date on which the AEDPA's limitations period begins to run) prior to April 24, 1996. See Reyes, 90 F.3d at 679. That question was answered in Peterson, where the Second Circuit held that petitioners whose convictions became final prior to April 24, 1996, would have only a "reasonable time" thereafter in which to file. See Peterson, 107 F.3d at 93.

 Contrary to petitioner's claim, the Supreme Court's subsequent decision in Lindh v. Murphy, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997), does not affect Peterson's applicability. In Lindh, the Supreme Court decided that the provisions of the AEDPA which affected Chapter 153 of Title 28, United States Code (28 U.S.C. § 2241-2255) "generally apply only to cases filed after the Act became effective." Lindh, 117 S. Ct. at 2068 (emphasis added). As noted, Peterson dealt precisely with those cases, such as the petitioner's, which were filed after the AEDPA was enacted, but in which the conviction became final prior to the Act. Moreover, Reyes had already held precisely the same result as the Supreme Court reached in Lindh, and the Peterson court saw no conflict between its ruling and that in Reyes. This Court is bound to follow Peterson until and unless it is overruled by the Second Circuit or by the Supreme Court, and Lindh in no way calls Peterson into question. Nor does United States v. Perez, 129 F.3d 255 (2d Cir. 1997), cited by petitioner, require a different result. In Perez, the Second Circuit held that its ruling in Lozada v. United States, 107 F.3d 1011, 1013 n.1 (2d Cir. 1997), that the COA requirements of the AEDPA applied to § 2255 petitions filed prior to the AEDPA's effective date, could not withstand the Supreme Court's decision in Lindh. See Perez, 129 F.3d at 260. Again, however, this decision merely recognizes that the AEDPA amendments to Chapter 153 do not apply to petitions filed prior to April 24, 1996. Alexander filed his petition after that date, and Peterson is still fully applicable. The petitioner's motion for reconsideration is therefore denied.

 Petitioner also requests that he be granted a Certificate of Appealability in order to appeal the denial of his habeas petition. The AEDPA bars appeal from the denial of a habeas petition "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). The Second Circuit has determined that district court judges may issue a COA. See Lozada, 107 F.3d at 1016.

 In order to warrant a COA, a petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Second Circuit has held that the standard for a COA is the same as for the Certificate of Probable Cause formerly required by 28 U.S.C. § 2253 prior to the AEDPA. See Reyes, 90 F.3d at 680. Under this standard, "'the petitioner need not show that he should prevail on the merits. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.'" Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 3395 n.4, 77 L. Ed. 2d 1090 (1983)).

 Neither of the two issues Alexander presses on his motion for reconsideration meets this standard, the first because it is beyond debate that the Attorney General's directive is irrelevant to Alexander's petition, and the second because the retroactivity of the AEDPA is a matter of statutory interpretation, not constitutional right. See Lindh, 117 S. Ct. at 2063 ("normal rules of [statutory] construction apply" to determination of AEDPA's temporal reach). Only to the extent that the Ex Post Facto Clause of the Constitution is implicated -- a claim not pressed by Alexander in this motion -- would a constitutional right be involved. The Court rejected such a claim in its January 14 order, see Alexander, 991 F. Supp. at , 1998 U.S. Dist. LEXIS 350, at *11, 1998 WL 17737, at *4, and does not believe this issue warrants further review on appeal.

 On one issue, however, the Court believes a serious constitutional question is raised, and that is whether the application of a time limitation to bar a first federal habeas petition is a violation of the Suspension Clause, see U.S. Const. art I, § 9, cl. 1 ("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."). *fn1" Although this Court has held that the Suspension Clause is not violated by the AEDPA's limitations period, see Rodriguez v. Artuz, 990 F. Supp. 275, 1998 U.S. Dist. LEXIS 131, 1998 WL 9377 (S.D.N.Y. 1998), Judge Robert J. Sweet of this district has taken the opposite view, and the Second Circuit has granted an interlocutory appeal on this question. See Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177, No. 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), appeal docketed, No. 97-2974 (2d Cir. 1997). Because the Second Circuit has seen fit to take the issue on appeal, it follows virtually a fortiori that the COA standard has been met. Accordingly, this Court grants petitioner's request for a COA.


 For the foregoing reasons, the Court denies Alexander's motion for reconsideration of its January 14, 1998, Order dismissing his habeas petition. This Court grants petitioner a Certificate of Appealability limited to the issue of whether the application of the AEDPA statute of limitations to time-bar his petition violates the Suspension Clause of the United States Constitution.


 Dated: New York, New York

 March 4, 1998



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