The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner in the above-captioned action has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent moves to dismiss the petition as time-barred under the
statute of limitations imposed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). The Court, having referred
this action to Magistrate Judge Kevin Nathaniel Fox for a Report
and Recommendation, adopts Magistrate Judge Fox's Amended Report
and Recommendation, dated July 10, 1998, that respondent's motion
be denied for the reasons set forth therein and further set forth
As set forth in the Amended Report and Recommendation,
petitioner was convicted on December 18, 1992, of murder in the
second degree following a trial by jury in the New York State
Supreme Court, New York County. On December 20, 1994,
petitioner's conviction was affirmed by the Appellate Division,
First Department. The New York Court of Appeals denied petitioner
leave to appeal on January 31, 1995.
Thereafter, petitioner commenced proceedings in the New York
courts for post-conviction relief. First, on June 18, 1996,
Brooks moved to vacate his conviction pursuant to New York
Criminal Procedure Law § 440.10(1)(d). On September 19, 1996,
this motion was denied by the Supreme Court, New York County, and
leave to appeal was denied by the Appellate Division, First
Department, on December 10, 1996. Next, Brooks filed an
application for a writ of error coram nobis with the Appellate
Division, First Department, on January 13, 1997. This application
was denied on July 10, 1997.
Petitioner then commenced the instant action by mailing a
petition for a writ of habeas corpus to the Pro Se Office of
this Court on or about July 28, 1997.*fn1 Respondent moved to
dismiss the petition as untimely, and Magistrate Judge Fox, by a
Report and Recommendation dated March 16, 1998, recommended that
respondent's motion be denied upon the ground that the petition
had been filed within a "reasonable time" after the enactment of
AEDPA under Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997).
Thereafter, the United States Court of Appeals for the Second
Circuit decided Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), in
which the court rejected the "reasonable time" standard
enunciated in Peterson and upon which Magistrate Judge Fox had
relied. This Court therefore referred the motion to Magistrate
Judge Fox for reconsideration in light of Ross. Magistrate Judge
Fox then issued the instant Amended Report and Recommendation,
dated July 10, 1998, recommending that the motion to dismiss be
denied. Respondent having raised objections to the Amended Report
and Recommendation, the Court reviews the relevant portions of
the Report de novo. See 28 U.S.C. § 636(b)(1)(C); Federal Rules
of Civil Procedure 72(b).
The AEDPA was enacted on April 24, 1996. It amends, inter alia,
28 U.S.C. § 2244 to require that habeas petitions filed pursuant
to 28 U.S.C. § 2254 be brought within one year after the
completion of direct state court review or the expiration of time
to seek such review. See 28 U.S.C. § 2244(d)(1)(A). The Second
Circuit, recognizing that the AEDPA effectively barred federal
court review of state court convictions that became final more
than one year prior to the effective date of the AEDPA, has
allowed petitioners a one-year period from the enactment of the
AEDPA during which such petitions would be deemed timely filed
without regard to the statute of limitations under the AEDPA. See
Ross, 150 F.3d at 103.
The AEDPA also includes a tolling provision, under which the
AEDPA's one-year statute of limitations is tolled by the pendency
of a "properly filed application for State post-conviction or
other collateral review." 28 U.S.C. § 2244(d)(2). As noted above,
petitioner brought two separate proceedings in state court for
collateral review of his conviction, and petitioner argues that
the statute of limitations should be tolled for the time that
these motions were pending. However, as respondent correctly
argues, even if this Court allowed petitioner the full benefit of
the tolling provision, the AEDPA's statute of limitations still
would have run prior to his commencement of this action.
Furthermore, because petitioner brought this action more than one
year after the enactment of the AEDPA, his petition also falls
outside the one-year period established by Ross and is untimely
even if plaintiff is afforded the benefit of the extra year
conferred by Ross.
Petitioner's claim survives only if this Court tolls the
running of the Ross one-year period during the pendency of
petitioner's proceedings in state court for collateral review, in
effect applying the tolling provision of the AEDPA to the
judge-made limitations period announced in Ross. Although the
Second Circuit has yet to decide the issue, at least three judges
in this district have held that the tolling provision of the
AEDPA does apply to the Ross one-year period. See Brooks v.
Artuz, No. 98 Civ. 4449,1999 WL 138926, at *2-3 (S.D.N.Y. March
15, 1999) (Chin, J.); Duncan v. Griener, No. 97 Civ. 8754, 1999
WL 20890 at *3 (S.D.N.Y. Jan. 19, 1999) (Koetl, J.); Joyner v.
Vacco, No. 97 Civ. 7047, 1998 WL 633664 at * 3 (S.D.N.Y. Sept.
15, 1998) (Cote, J.); but see
Cole v. Kuhlmann, 5 F. Supp.2d 212, 213-214 (S.D.N.Y. 1998)
(Rakoff, J.) (holding that the AEDPA's tolling provision is
inapplicable under Peterson v. Demskie where petitioner's
conviction became final prior to the effective date of the
AEDPA). Moreover, the circuit courts that have considered the
question have reached the same result. See Gendron v. United
States, 154 F.3d 672, 675 & n. 3 (7th Cir. 1998) (per curiam);
Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); Lovasz v.
Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998); Fields v. Johnson,
159 F.3d 914 (5th Cir. 1998).
Although Judge Rakoff's reasoning in Cole v. Kuhlmann,
5 F. Supp.2d 212, 213-214 (S.D.N.Y. 1998), that the AEDPA's tolling
provision should be applied to toll only the AEDPA's statute of
limitations is persuasive, the weight of the recent case
authorities supports the opposite conclusion. Therefore, the
Court finds that petitioner's post-conviction motions in state
court tolled the running of the Ross period and that the instant
petition was timely filed.
For the foregoing reasons, the Court adopts the Amended Report
and Recommendation of Magistrate Judge Fox denying respondent's
motion to dismiss. Respondent shall serve and file his Answer to
the petition by June 11, 1999. This action is referred ...