conclusion of ninety days during which he could have sought
certiorari in the United States Supreme Court." Hughes v.
Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997). Although
petitioner filed the instant petition with the Court's Pro Se
Office on August 23, 1999 — more than thirteen years and seven
months from the date his conviction became final — due to the
grace period afforded to him under Ross, the statute of
limitations did not begin to run until April 24, 1996. Thus,
absent any tolling, this petition would have had to have been
filed by April 24, 1997. Ross, 150 F.3d at 103. The issue for
this Court, therefore, is whether a properly filed application
for State post-conviction review was pending, thereby tolling
the statute of limitations, for a period of time sufficient to
render the instant petition timely.
From April 24, 1996,*fn5 until January 27, 1997, petitioner
took no affirmative action with respect to his case.
Consequently, the statute of limitations ran for 278 days. On
January 27, 1997, when petitioner brought his third 440.10
motion, the clock stopped and the statute was tolled. The
tolling lasted for 142 days, or, until June 18, 1997, when the
Westchester Supreme Court denied petitioner's motion. Petitioner
then had 87 days left, until September 13, 1997, to file his
second habeas petition.*fn6 He did not take any action,
however, until September 19, 1997, six days after the statute of
limitations expired, when he applied to the Appellate Division
for leave to appeal the denial of his third CPL 440.10 motion.
Nonetheless, assuming that the statute did not expire and was
tolled through November 17, 1997 — when the Appellate Division
denied petitioner's September 19, 1997, application — the
statute would have been tolled for another 59 days.*fn7 It
was not until May 4, 1998, however, that petitioner filed his
next motion, 168 days after the November 17, 1997, decision.
Consequently, the instant petition would have been time barred
at this point.
It is, therefore, irrelevant that petitioner did not receive
the decision from his May 4, 1998, application to the Court of
Appeals until 90 days after it had been rendered. Even when
tolling the time that all motions were pending plus the 90-day
delay, 233 days had passed since the actual expiration of the
statute. See Geraci, 211 F.3d at 6 (dismissing a habeas
petition as untimely when the one-year grace period was exceeded
by three days); Bonilla v. Ricks, No. 00 Civ. 7925, 2001 WL
253605, 2001 U.S. Dist. LEXIS 2505 (S.D.N.Y. March 14, 2001)
(dismissing a habeas petition as untimely when the statute of
expired seven days prior to filing). Hence, petitioner's instant
petition for a writ of habeas corpus is clearly time barred
under the AEDPA's one-year statute of limitations.
2. Equitable Tolling
To the extent that petitioner's argument is a request for
equitable tolling, that request is denied. In allowing 278 days
of his one-year grace period to pass before challenging his
conviction — and ultimately filing the instant petition 809 days
past his September 13, 1997, deadline under AEDPA — petitioner
has failed to act with "reasonable diligence throughout the
period he seeks to toll." McGinnis, 208 F.3d at 17.
Additionally, the record contains no evidence of extraordinary
or unusual circumstances that would have prevented petitioner
from filing the petition on time. Accordingly, there is no
justification for allowing equitable tolling of the AEDPA's
one-year limitation period.
For the forgoing reasons, the petition for a writ of habeas
corpus is denied. Because the petitioner has not made a
substantial showing of the denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253 (as amended by the AEDPA). I certify pursuant to
29 U.S.C. § 1915(a)(3) that any appeal taken from this decision
would not be taken in good faith. The Clerk of the Court is
directed to enter judgment accordingly and to close this case.