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EVANS v. SENKOWSKI

June 30, 2000

WILLIAM EVANS, PETITIONER,
V.
DANIEL SENKOWSKI, SUPERINTENDENT CLINTON CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM AND ORDER

William Evans petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1992 state court convictions on robbery charges. In a decision dated October 12, 1999, (the "October 1999 Order"), the court reserved decision on this Petition and ordered the parties to submits briefs on what was, at the time, a novel statute of limitations issue. Counsel was appointed for Petitioner to facilitate a full briefing of the legal issue raised by the court.

The parties have recently submitted the briefs contemplated by the October 1999 Order. Upon review of the briefs and a recent decision by the Court of Appeals for the Second Circuit, this matter is now ripe for adjudication. For the reasons set forth below, the Petition is dismissed as untimely.

BACKGROUND

I. Time Limitations and Tolling under AEDPA

As set forth in the October 1999 Order, familiarity with which is assumed, Petitioner, whose state court conviction became final several years prior to the effective date of AEDPA, had one year from that date in which to file a petition for a writ of habeas corpus. That one year statute of limitations is tolled under the circumstances set forth in AEDPA.

Of significance in this case was the question of whether the filing of a federal habeas petition (which is later dismissed without prejudice) tolls the running of the AEDPA statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). Specifically, the court questioned whether the filing of a federal habeas petition constituted "other collateral review" within the meaning of the toll.

DISCUSSION

I. AEDPA is Tolled When a Federal Habeas Petition is Pending

Since the October 1999 Order, the Second Circuit has ruled upon the precise issue raised herein. In Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000), the court held that a prior properly filed habeas corpus petition, dismissed without prejudice, tolls the one-year limitations period under AEDPA.

In Walker, the petitioner filed two habeas petitions, the second of which was dismissed as untimely because it was filed more than one year after the completion of Petitioner's direct criminal appeal, and nearly one year after the court dismissed the first habeas petition. The Second Circuit held that the time period when a properly filed habeas corpus petition is pending in federal court should be excluded from the one year statute and rejected the interpretation that would include only state procedures or remedies within the phrase "other collateral review." Walker, 208 F.3d at 358.

Noting that the AEDPA toll applies only to "properly" filed habeas petitions, the Second Circuit rejected the notion that its holding would encourage the filing of successive, frivolous habeas petitions filed for the sole purpose of extending the statute of limitations. See Walker 208 F.3d at 358. Such petitions would likely follow the dismissal of a petition on the merits and would therefore not toll the AEDPA time period. On the other hand, where, as here, a habeas petition is dismissed without prejudice, the running of the statute of limitations is tolled. Id.; see 28 U.S.C.A. § 2244(b), (d)(2) (AEDPA restriction on successive petitions if a prior petition was dismissed on the merits or with prejudice).

In light of the foregoing, it is now clear that it is proper to toll the statute of limitations for the period during which the first habeas petition in this matter was pending. The court turns then to consider whether, ...


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