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SORCE v. ARTUZ

November 10, 1999

JOSEPH SORCE, PETITIONER,
v.
CHRISTOPHER P. ARTUZ, SUPERINTENDENT GREENHAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

Joseph Sorce petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1993 state court convictions of various drug and weapons charges. For the reasons set forth below, the Petition is dismissed as time-barred.

BACKGROUND

I. Time Limitations For Filing a Habeas Petition under AEDPA

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one year statute of limitations on the filing of an application for a writ of habeas corpus. The one year period begins to run from the latest of:

  • the date on which the judgment became final by the
    conclusion of direct review or the expiration of
    the time for seeking such review;
  • the date on which the impediment to filing an
    application created by State action in violation of
    the Constitution or laws of the United States is
    removed, of the applicant was prevented from filing
    by such State action;
  • the date on which the constitutional right asserted
    was initially recognized by the Supreme Court, if
    the right has been newly recognized by the Supreme
    Court and made retroactively applicable to cases on
    collateral review; or
  • the date on which the factual predicate of the
    claim or claims presented could

    have been discovered through the exercise of due
    diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

AEDPA's statute of limitations clearly applies to all convictions that became final after the statute's effective date — April 24, 1996. In cases where a conviction became final before AEDPA's effective date, a petition for habeas corpus was required to be filed by April 24, 1997 — one year after the effective date of AEDPA. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). A conviction becomes "final" for purposes of AEDPA, upon the expiration of the petitioner's direct appeal. This includes expiration of the direct state court appeal as well as expiration of the time in which to seek certiorari from the United States Supreme Court.

Once AEDPA's one year statute of limitations beings to run, the running of the statute may be tolled. Specifically, the time period is tolled during the time when a prisoner's "application for State post-conviction or other collateral relief" is pending. 28 U.S.C. § 2244(d)(2). While the Second Circuit has not ruled on the applicability of the tolling provision of AEDPA in connection with pre-AEDPA convictions, most courts, including this court, have held that prisoners taking advantage of the one-year grace period are also entitled to take advantage of AEDPA's tolling provision during that time period. See Evans v. Senkowski, No. 98-4488 (E.D.N.Y. October 12, 1999); accord Torres v. Miller, 1999 WL 714349, at *3 (S.D.N.Y. August 27, 1999); Perez v. Bennett, 1999 WL 553782 * 1 (S.D.N.Y. July 29, 1999); Burnie v. People, 1999 WL 342243 *1 (E.D.N.Y. May 7, 1999).

A post-conviction motion is considered to be "pending" for the purposes of AEDPA's toll, from the time the motion is first filed until the time a final decision on the merits is rendered, including the time during which the motion is pending on appeal. Duncan v. Griener, 1999 WL 20890 *3 (S.D.N.Y. January 19, 1999); Geraci v. Senkowski, 23 F. Supp.2d 246, 252 (E.D.N Y 1998).

The tolling provision of AEDPA does not allow the one year period to run anew each time a post-conviction motion is ruled upon. Instead, the toll excludes from the calculation of the one year period any time during which post-conviction relief is pending. Torres v. Miller, 1999 WL 714349 *4 (S.D.N.Y. August 27, 1999). Thus, the provision stops, but does not reset, the clock from ticking on the time in which to file a habeas petition. It cannot revive a time period that has already expired. Lucidore v. New York State Division of Parole, 1999 WL 566362 * 4 (S.D.N.Y. August 3, 1999); Varsos v. Portuondo, 1999 WL 558147 *3 (S.D.N.Y. July 9, 1999); Brooks v. Artuz, 1999 WL 138926 *2 (S.D.N.Y. March 15, 1999); Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998). To allow a belated state court collateral attack to revive the AEDPA limitations period would defeat the purpose of the AEDPA limit. Torres v. Miller, 1999 WL 714349 *4 (S.D.N.Y. August 27, 1999); Varsos v. Portuondo. 1999 WL 558147 *3 (S.D.N.Y. July 9, 1999).

Habeas corpus relief may be sought in excess of one year of a conviction becoming final if the circumstances set forth in 28 U.S.C. § 2244(d)(1)(B)(C) or (D) are present. Relevant here is that subsection which allows the one year period to begin to run only from the date upon which the factual predicate of a claim could have been discovered by the petitioner. See 28 U.S.C. § 2244(d)(1)(D). This provision ensures that habeas relief may be sought even after a conviction has been final for one year, in cases where newly discovered evidence supports petitioner's claim. In such cases, the one year period begins to run from the date upon which the factual predicate could have been discovered though the exercise of due diligence. Section 2244(d)(1)(D), while allowing the statute to run anew upon the discovery of new evidence, "does not convey a statutory right to an extended delay . . . while a habeas petitioner ...


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