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