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