The opinion of the court was delivered by: Denise Cote, United States District Judge
Guy Youngblood ("Youngblood") filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 on April 22, 1997. That petition was dismissed to permit Youngblood to exhaust one of his claims. Following exhaustion, Youngblood renewed his petition. Because Youngblood did not diligently pursue either the state court remedies to exhaust his claim, or the refiling of the petition, in his report of October 2, 2002 ("Report"), Magistrate Judge Pitman recommends that the petition be dismissed as barred by the one year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Youngblood objects to the Report. For the following reasons, the Report is adopted and the petition is dismissed.
As explained in this Court's prior Opinions, familiarity with which is assumed, Youngblood was convicted following trial in 1988 of murder and is serving a sentence of, inter alia, 21 years' to life imprisonment. See Youngblood v. Greiner, 1998 WL 720681 at *1 (S.D.N.Y. 1998). Following a direct appeal and collateral attacks on the conviction in state court, Youngblood filed a habeas petition on April 22, 1997. Id. at *3. Originally, this Court ruled that the petition was barred by AEDPA's one-year statute of limitations because it appeared that Youngblood's state court proceedings had ended in 1995. See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. June 26, 1997). On October 24, however, this Court concluded that the petition survived preliminary review under Rule 4 of the Rules governing Section 2254 cases based on Youngblood's claim that evidence underlying one of his claims was first discovered in 1997. See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. Oct. 24, 1997). The petition was referred to a Magistrate Judge for a report and recommendation. The report, issued on August 3, 1998, recommended a denial of Youngblood's claims on the merits.
In an Opinion of October 8, 1998, this Court described in some detail the history of Youngblood's prosecution and his attacks on his conviction through various state court proceedings, and addressed objections to the report by respondents that the petition should be dismissed as time-barred and because it contained an unexhausted claim. Using the date on the petition, the Court found that it was timely, having been signed and notarized two days before April 24, 1997.*fn1 Finding, however, that one of Youngblood's claims was unexhausted, the petition was dismissed without prejudice "at the request of the petitioner." Youngblood, 1998 WL 720681 at *6 (S.D.N.Y. Oct. 13, 1998) ("October 8 Opinion").*fn2 An Order of November 17, 1998 rejected Youngblood's request, contained in an untimely motion for reconsideration, that the Court make certain findings of fact regarding the unexhausted claim. See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. Nov. 17, 1998)
On March 11, 1999, 114 days after the motion for reconsideration was denied, Youngblood renewed a Section 440.10 motion on the ground of newly discovered evidence. On May 11, 2000, the Appellate Division denied the appeal that followed the trial court's rejection of the motion.
In a letter to the Court dated July 20, 2000, Youngblood requested an extension of time to file a new petition. The Honorable Sidney H. Stein rejected the request in an Order of August 3, 2000, on the ground that there was no jurisdiction to consider such a request. The Order further advised Youngblood that he must show that he acted with "reasonable diligence" throughout any period of time he seeks to toll.
Youngblood's renewed petition for a writ of habeas corpus is dated August 8, 2000. It is notarized with the date August 8, 2000, but is postmarked August 31. It was received by the Pro Se Office of this district on September 5, and docketed on October 19. The petition was referred to Magistrate Judge Pitman on October 30, 2000, and the Report recommending dismissal of the petition as untimely was issued on October 2, 2002.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court reviews de novo those portions of the report to which an objection has been made. Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)
The Report recites that Youngblood has offered "no explanation" for either the 114 day delay in filing the Section 440.10 motion or the 89 day delay in filing the renewed petition. The Report concludes, as a consequence, that the doctrine of equitable tolling can not save the petition.
Youngblood submitted timely objections to the Report. He first argues that under the procedure described by the Second Circuit in 2001 in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001), the District Court should have stayed his petition in 1998, instead of dismissing it to give him an opportunity to exhaust a claim, or at least should have alerted him to the fact that AEDPA had a one-year statute of limitations and that a portion of that period had already elapsed. Youngblood was well aware of AEDPA's one year statute of limitations at the time his petition was dismissed in 1998. Indeed, it was as a result of that one year time limit that the Court had initially determined that the petition had to be dismissed as untimely. As noted above, the timeliness discussion in the October 8 Opinion makes clear the importance of the AEDPA limitations period, and that Youngblood's petition had been presumptively delivered to prison authorities with but two days remaining prior to its expiration. Youngblood's own submissions to the Court in 1998 recite his understanding that he had filed his petition within two days of the expiration of the statute of limitations.
As a result of Duncan v. Walker, 533 U.S. 167 (2001), it is now clear that Youngblood's time had already run when his petition was dismissed in 1998, since the time a petition is pending in federal court does not toll the AEDPA statute of limitations. Even without that knowledge, however, it is reasonable to expect that Youngblood knew as of the 1998 dismissal that he had only two days remaining in the statute of limitations period and was required at the very least to act with diligence in exhausting his state remedies and to return to federal court promptly.*fn3
Liberally construing Youngblood's pro se submission, Youngblood next appears to argue that the delay of 114 days should be excused because he wrote a letter of November 30, 1998 to the Clerk of Court requesting an explanation of AEDPA's time requirements, an inquiry which was never answered. He contends that the delay of 89 days should be excused because he sought an extension of time to refile his petition, and refiled the petition five days after his request for an ...