The opinion of the court was delivered by: GLEESON
JOHN GLEESON, United States District Judge:
Sammy Geraci filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his 1992 conviction for manslaughter and assault. Thereafter, the respondent moved to dismiss the petition on the grounds that (1) the petitioner failed to commence this proceeding within the period of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA" or the "Act"), 28 U.S.C. § 2244(d)(1); and (2) the petitioner has failed to exhaust his state court remedies with respect to all of his claims. For the reasons set forth below, I conclude that the petition was not filed in a timely manner and that, in any event, it lacks merit.
At approximately 1:00 a.m. on April 20, 1990, following an argument in a Brooklyn nightclub, the petitioner stabbed Anthony Granese in the chest, fatally wounding him. As he fled from the scene, the petitioner also stabbed Rocky Giamportone in the arm and leg. The petitioner then entered a getaway car driven by his brother, Frank Geraci. Another of his brothers, Paul Geraci, apparently attempting to assist in his brother's escape, fired a gun into the crowd, hitting Anthony Gallo in the back. Someone called 911 and identified the petitioner as the person who did the stabbing.
Before the grand jury, Peter Terranova testified that he was present in the Brooklyn nightclub on the night of the stabbing and that he had seen the petitioner stab Granese and Giamportone. Thereafter, the prosecutor informed the trial judge that Terranova had stated to the prosecutor that, if called at trial, he intended to testify that he had not seen who stabbed Granese, thereby contradicting his own grand jury testimony. Based upon Terranova's statements, the prosecutor requested a "Sirois hearing" to determine whether the petitioner had been responsible for Terranova's decision to change his testimony and, if so, whether the prosecution should be allowed to introduce Terranova's grand jury testimony as part of its evidence-in-chief at trial. See In re Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dep't 1983). Over the objections of defense counsel, the trial court granted the request for a hearing.
At the hearing, the evidence showed that, on May 24, 1990, Peter Terranova called the 62nd Precinct to inquire about the status of the case. He was instructed to come to the precinct house, where he asked Detective Frank LaBarbera, who was assigned to investigate the homicide, why "nothing" had been done on the case despite the fact that he had called 911 on the night of the incident in order to identify the perpetrator. Terranova thereupon gave a detailed statement to LaBarbera, again identifying the petitioner as the man who stabbed Granese. Later that evening, Terranova gave a sworn audiotaped statement to an assistant district attorney, providing the same detailed account of the events he had given to LaBarbera.
Terranova stated that the incident began as a fist fight. Terranova was fifteen feet away, and observed the petitioner, whom Terranova had known for ten years, stab Granese with an "underneath motion" in the "chest approximately a little towards the left." The petitioner pulled out the knife, and attempted to flee the nightclub, but he encountered Giamportone, the owner of the bar, whom the petitioner stabbed in the leg. The petitioner then left the club and jumped into a white Ford Mustang driven by his brother Frank Geraci. Terranova had also left the nightclub and was approximately thirty feet away from the car as a group of Granese's friends chased the car, throwing bottles at it. At that point, another of the petitioner's brothers, Paul Geraci, came running out the nightclub and fired a shot into the crowd.
A few days before he was scheduled to testify in the grand jury, Terranova met with LaBarbera and the assistant district attorney outside the Wall Street brokerage firm where Terranova worked. Terranova was nervous about the prospect of being seen at the district attorney's office and about testifying in the grand jury. The prosecutor sought to allay Terranova's concerns by explaining the rules of grand jury secrecy and by telling Terranova that he would try to schedule his testimony at an "off time." Terranova appeared in the grand jury on June 19, 1990, and provided the detailed account implicating the petitioner that he had previously provided to LaBarbera and the assistant district attorney. The petitioner was indicted for murder in the second degree and two counts of assault in the first degree.
In November 1991, the assistant district attorney discovered that the grand jury minutes were missing. He contacted Terranova (who had had limited contact with law enforcement since his grand jury appearance five months earlier), who reported that the petitioner had recently encountered him on the street and asked him to meet with the petitioner's attorney. Terranova reported that he had declined that request, stating that he did not want to get involved.
On January 13, 1992, shortly before the petitioner's trial was scheduled to start, Terranova left his well-paying job at the brokerage firm without notice. His mother later told the firm that he would not be returning and not to ask any questions about him. One week later, Terranova fled the jurisdiction and could not be found despite extensive efforts by the prosecutor.
On February 5, 1992, LaBarbera and the assistant district attorney questioned Terranova's mother about his whereabouts. She would not reveal any information, and apparently was threatened with prosecution for obstructing justice. Thirty minutes after she left the precinct house, Terranova called the detective and prosecutor from Florida. During the conversation which ensued, a conversation which was taped, Terranova asked how "they" found about him. He stated that, in January, he had been asked to meet with an individual who showed him his testimony, and that he feared for himself and his family. According to Terranova, he was told that if he stayed away until the trial was over, neither he nor his family would be hurt. He stated that, if he was called to the stand, he would lie; he further stated that he hated the petitioner.
On March 5, 1992, Terranova was picked up by the police and brought to the assistant district attorney's office. He stated, again, that he had been shown his testimony. The next day he informed the prosecutor that he had received money from "them" and that a friend of his had gone to Harlem to see the petitioner's uncle. That evening, he took the detective aside and stated that he had not in fact seen the stabbing because he had been in the parking lot during the incident.
At the hearing, Terranova stated that he had been inside the nightclub at the time of the stabbing, but that he could not identify the perpetrator. In order to explain the discrepancy between his prior statements and his current account, Terranova stated that he was unsure about the accuracy of his prior statements because the nightclub was crowded and dark and he had been drinking. He denied calling 911, but admitted he told the detective he had done so. He also admitted that, when he met with the detective and prosecutor outside his place of business in June of 1990, he expressed concern about being seen testifying before the grand jury. He further conceded that he left his job and the jurisdiction to avoid testifying at trial, but stated that he did so because he was unsure of what he saw on the night of the incident. Terranova confirmed that the audiotaped phone conversation, which was admitted at the hearing, reflected the conversation he had with the detective and prosecutor on February 5, 1992. He denied speaking to the defendant about the case, and claimed that his only fear was that he would be prosecuted for perjury.
After conducting the foregoing hearing, the trial court issued a memorandum decision. See Respondent's Exhibit B. In that decision, the trial court, after setting forth the foregoing facts, found that the prosecution had proven by clear and convincing evidence that the petitioner had threatened Terranova and that if Terranova were allowed to testify at trial, he would testify falsely. Based upon the foregoing, the court ruled that Terranova was "practically unavailable" to testify and that, accordingly, the prosecution could introduce Terranova's grand jury testimony as part of its case-in-chief. The trial court also held that the People did not have to call Terranova to the witness stand. Respondent's Exhibit B at 17 ("Because I declare Terranova an unavailable witness, the court declines the defendant's alternative request to compel the People to call him as a witness.").
At trial, the prosecution called, inter alia, Katherine Citarrella, who testified that one week before the night of the fatal stabbing, she had been in a bar and had seen two groups of men engaged in a fight. She testified that she had seen the petitioner, who was in one group, hit Granese, who was in the other group. In addition to Citarrella, the prosecution also called several employees and patrons of the Brooklyn nightclub. Although they all had been present at the time of the stabbing, they testified that they had not seen who stabbed Granese. The prosecution also introduced Terranova's grand jury testimony, which was read into the record by a court reporter.
After the prosecution rested, the defense called Vincent Michelino. Michelino stated that Terranova had been outside the bar at the time of the stabbing, and therefore that he could not have seen who stabbed Granese.
Based upon the foregoing, the jury convicted the petitioner of one count of manslaughter in the first degree and two counts of assault in the first degree. On April 23, 1992, the court sentenced the petitioner to an indeterminate term of imprisonment of eight and one-third to twenty-five years on the manslaughter count and five to fifteen-years on each of the assault convictions. The sentences on the manslaughter and one of the assault convictions were imposed consecutively; the sentence on the second assault conviction was to run concurrently to the other two sentences. The total sentence was thus thirteen and one-third years to forty years.
In an appeal from his judgment of conviction to the Appellate Division, the petitioner claimed that (1) the trial court's decision to permit the prosecution to introduce Terranova's grand jury testimony Terranova was improper; (2) the prosecution's reference to the defendant's brother during trial was improper and constituted reversible error; and (3) his sentence was harsh and excessive. The Appellate Division, Second Department, unanimously affirmed the petitioner's judgment of conviction on January 31, 1994. See People v. Geraci, 200 A.D.2d 758, 607 N.Y.S.2d 116 (2d Dep't 1994). On March 28, 1995, after the petitioner was granted leave to appeal, the Court of Appeals unanimously affirmed the order of the Appellate Division with respect to the question of the introduction of Terranova's grand jury testimony. See People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995).
Thereafter, the petitioner moved pursuant to New York's Criminal Procedure Law § 440.20 for an order setting aside his sentence on the ground that it was illegally imposed ("the § 440 motion").
The petitioner contends that the motion was filed on February 1, 1997.
On April 7, 1997, while the petitioner's § 440 motion was pending, the petitioner filed a habeas petition in this Court. See Geraci v. Senkowski, 97-CV-1720. In an order dated May 1, 1997, I dismissed the petition "because [the] petitioner had yet to exhaust his state court remedies." Thereafter, in a decision and order dated April 24, 1997, the state court denied the petitioner's § 440 motion. After the petitioner sought leave to appeal the denial to the Appellate Division, that court, in an order dated August 25, 1997, denied leave to appeal.
Geraci then petitioned for a writ of error coram nobis. In that petition, he argued that his appellate counsel was constitutionally ineffective for failing to raise the issue of the admissibility of hearsay at the petitioner's pretrial hearing, for failing to raise the issue of trial counsel's failure to call Terranova at trial, and because he suffered from an actual conflict of interest. The petitioner contends that he filed the petition on November 11, 1997. The Appellate Division denied the application for coram nobis relief in an order dated February 17, 1998.
The petitioner filed the instant petition for a writ of habeas corpus on February 24, 1998. In it, the petitioner argues that: (1) his trial counsel rendered constitutionally ineffective assistance of counsel by failing to call Terranova as a witness; (2) in finding Terranova to be unavailable, the trial court improperly relied upon uncorroborated double and triple hearsay; (3) his appellate counsel rendered constitutionally ineffective assistance by failing to argue on appeal that the trial court's reliance on hearsay was improper; (4) the trial court erred by finding that Terranova changed his testimony as a result of threats originating with the petitioner; (5) the trial court violated his Confrontation Clause rights by finding Terranova to be legally unavailable; (6) the trial court erred by admitting evidence of bad acts committed by the petitioner's brother; (7) his due process rights were violated during his sentencing; and (8) his appellate counsel suffered from a conflict of interest which rendered him incapable of providing constitutionally effective assistance of counsel.
On April 17, 1998, the respondent filed a motion to dismiss the petition on the ground that petitioner failed to file within the period of limitations set forth in the AEDPA and on the ground that the petition contains a claim which has not been exhausted in state court. The respondent filed an opposition to the merits of the petition on May 29, 1998.
The AEDPA, which was signed by President Clinton on April 24, 1996, requires that a federal habeas corpus petition be filed within one year of the date a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). Although Congress did not give specific guidelines about the retroactivity of this provision, the Second Circuit recently held that prisoners whose convictions became final prior to the effective date of the Act "should [be] accorded a period of one year after the effective date of AEDPA in which to file a first § 2254 petition." Ross v. Artuz, 150 F.3d 97, 1998 U.S. App. LEXIS 14918, *18, 1998 WL 400446, at *6 (2d Cir. 1998).
Here, the petition was filed on February 24, 1998, well over a year after the effective date of the AEDPA. However, any period during which review of a judgment is taking place in state court is not counted toward the one-year filing limit. See 28 U.S.C. § 2244(d)(2). Specifically, § 2244(d)(2) provides that "the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."
The parties disagree with respect to the question of how long the petitioner's two post-conviction motions were pending. According to the respondent, the motions were pending until the date the Appellate Division rendered its decisions with respect to the § 440 motion and coram nobis petition, August 25, 1997, and February 17, 1998, respectively. By contrast, the petitioner contends that they were pending until the date his attorney received notice that the Appellate Division had rendered its decisions, September 9, 1997, and February 23, 1998, respectively.
I conclude that, in this context, the word "pending" in § 2244(d)(2) has an unambiguous meaning: a motion is pending if it has been filed with the Court but has yet to be decided.
Accordingly, once the relevant motions were decided in state court, they were no longer pending. I therefore find that, at least where, as here, the habeas petitioner was represented by counsel in connection with his post-conviction motions, those motions were "pending" until the dates the Appellate Division rendered its decisions, i.e., August 25, 1997, and February 17, 1998, respectively.
My conclusion is not undermined by the fact that, as the petitioner observes, Federal Rule of Civil Procedure 6(e) provides that, "whenever a party has the right or is required to do some act or take some proceedings within a prescribed period of time after the service of notice or other paper upon the party, and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period." Fed. R. Civ. P. 6(e). As I already have stated, the statute of limitations is tolled for the time period during which a properly filed post-conviction motions is "pending." Whether the petitioner or his attorney received notice of the court's decisions on the relevant motions by mail or otherwise is therefore irrelevant. Cf. Hatchell v. United States, 776 F.2d 244, 246 (9th Cir. 1985) (holding that Rule 6(e) is inapplicable where the time for filing begins to run on "the date of mailing").
Federal Rule of Civil Procedure 6(a) provides as follows:
In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday or a legal holiday . . . .
In addition, in Ross, the Second Circuit stated as follows: "When a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the start of the limitations period. Our adoption of a grace period of one year means that petitions filed pursuant to § 2254 and motions filed pursuant to § 2255 are not barred by the statute of limitations established by AEDPA if filed on or before April 24, 1997." Ross, 150 F.3d 97, 1998 U.S. App. LEXIS 14918, *19, 1998 WL 400446, at *7 (citations omitted).
Based upon the foregoing, I conclude that, at least where the petitioner is represented by counsel in connection with his post-conviction motions and habeas petition, the dates on which the post-conviction motions are filed are counted towards the statute of limitations, as is the date on which the habeas petition is filed, but the dates on which the relevant decisions with respect to the post-conviction motions are rendered are not.
Here, the statute of limitations began running on April 24, 1996, so the first day counted toward the limitations period is April 25, 1996. The "clock" stopped running 283 days later, on February 1, 1997, the date the petitioner filed his § 440 motion.
The statute of limitations began running again on August 26, 1997, the day after the petitioner was denied leave to appeal the Appellate Division's denial of his § 440 motion, and continued to run through November 11, 1997, the date the petitioner filed his coram nobis petition. Thus, during the time period before the petitioner filed his coram nobis petition, the statute of limitations ran for 78 days.
The statute of limitations began running for the last time on February 18, the day after the Appellate Division denied the coram nobis petition, and ran through February 24, 1998, the date the petition was filed. During this final time period, the statute of limitations ran for 7 days. Taking the three time periods together, the statute of limitations ran for 368 days and, accordingly, the petition is untimely.
The petitioner contends that, notwithstanding the foregoing, I should deem the petition to be timely filed because Rule 6(a) provides that "the last day of the period so computed shall be included unless . . . the act to be done is the filing of a paper in court." According to the petitioner, the foregoing "shows that the day that the various legal proceedings were filed should not be counted." Letter from Joel A. Brenner, Esq., dated July 29, 1998, at 2. In making the foregoing argument, however, the petitioner misreads Rule 6(a), which in fact provides that "the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day." Fed. R. Civ. P. 6(a) (emphasis added). The petitioner's counsel has not alleged that he was prevented from filing by bad weather.
The petitioner's counsel also asks that this Court excuse the petitioner's untimely filing "on the ground that any lateness was due to counsel's misunderstanding of the periods to be included and/or excluded from the statute of limitations." Letter from Joel A. Brenner, Esq., dated July 29, 1998, at 3. The petitioner argues that the uncertainty should be deemed "excusable neglect."
I disagree. In making the foregoing argument, the petitioner appears to be suggesting that, in deciding when to file his two post-conviction motions and the instant petition, his counsel was keeping careful track of how much of the limitations period had run, and that he filed a few days late only because he mistakenly believed that the days on which the post-conviction motions and the instant petition were filed would not count towards the statute of limitations. However, during the time period in which those papers were filed, the district courts within this circuit were determining whether habeas petitions were timely filed by applying the dicta laid down in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997). Pursuant to Peterson, habeas petitions were timely if they were filed within a "reasonable time" after the effective date of the AEDPA. Id. at 93. Accordingly, under Peterson, a difference of a few days would almost certainly have made no difference to the question whether the instant petition was timely filed. Indeed, under Peterson, this petition most likely would have been dismissed even if it were filed three days earlier than it was. I find the petitioner's claim that his counsel filed several days late as a result of a "miscalculation" to be implausible.
Even excluding allowable time, the petition was filed more than 365 days after the effective date of the AEDPA. I therefore conclude that it was not filed in a timely manner, and that dismissal is warranted on that ground.
II The Merits of the Petition
Pursuant to the AEDPA, a state prisoner's application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable ...