The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.
ORDER and REPORT-RECOMMENDATION
Petitioner Keenan Johnson, a New York State prison inmate as a result of 1998 Onondaga County Court convictions for second degree murder and fourth degree criminal possession of a weapon, filed a writ of habeas corpus asserting three separate grounds in support of his claim that his conviction should be set aside (Dkt. No. 1). In response to the petition, the Office of the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed a motion to dismiss the petition,*fn1 together with supporting papers, in which he claims that the petition is untimely in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Dkt. Nos. 7-9.*fn2
Since this action was timely filed in accordance with the AEDPA, it is recommended that the motion to dismiss be denied.
On March 6, 1998, Johnson was found guilty by a jury for second degree murder and fourth degree criminal possession of a weapon. Pet. (Dkt. No. 1) at ¶ 2. Johnson was sentenced to a term of twenty-five years to life imprisonment on the murder conviction, with a lesser, concurrent sentence on the weapon's possession conviction. Id. at ¶ 3. Johnson appealed his conviction and sentences. However, the New York State Supreme Court, Appellate Division, Fourth Department, affirmed in all respects. People v. Johnson, 265 A.D.2d 930 (4th Dept. 1999). The Court of Appeals denied Johnson's application for leave to appeal on March 8, 2000. People v. Johnson, 94 N.Y.2d 921 (2000); Dkt. No. 12 at ¶ 7. On April 24, 2001, Johnson filed an application with the Court of Appeals seeking reconsideration and reargument of that court's March 2000 order denying leave to appeal. Dkt. No. 12 at ¶ 8 and Ex. A ("April 2001 Motion for Reconsideration"). By letter dated May 3, 2001, the clerk of that court advised Johnson that his request for reconsideration would not be granted. Dkt. No. 12 at ¶ 9 and Ex. B.
This action was filed on June 8, 2001. Pet. at P. 7. Respondent was then directed by this court to file a response to the petition pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 (Dkt. No. 10). The Attorney General filed a motion to dismiss on September 25, 2001 (Dkt. Nos 7-9), and Johnson filed a response in opposition on October 12, 2001 (Dkt. No. 12). The respondent then filed a reply in further support of his motion to dismiss (Dkt. No. 15) to which Johnson filed a surreply (Dkt. No. 16). Respondent's motion has been referred to this court for the issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c).
The rules governing habeas petitions were significantly modified by enactment of the AEDPA. One such change was the institution of a one-year statute of limitations applicable to habeas corpus petitions. Specifically, in light of the AEDPA, 28 U.S.C. § 2244 now provides that:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
A judgment of conviction becomes final under the AEDPA at the conclusion of the ninety day period during which the defendant could have sought certiorari review in the United States Supreme Court. Williams v. Artuz, 237 F.3d 147, 150-151 (2d Cir. 2001); see also, Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of Rules of the Supreme Court of the United States); Allen v. Hardy, 478 U.S. 255, 258 (1986) (decision becomes final "where the availability of appeal [is] exhausted, and the time for petition for certiorari ha[s] elapsed").
In his motion to dismiss, respondent argues that since Johnson's conviction became final for purposes of the AEDPA on June 6, 2000 (ninety days after March 8, 2000, the date on which New York's Court of Appeals denied Johnson's application for leave to appeal), this action was not timely commenced by Johnson's counsel on June 8, 2001 (Dkt. No. 8 at P. 6). In response, Johnson claims that his April 2001 Motion for Reconsideration was pending from April 24, 2001, until May 3, 2001, and since the statute of limitations was tolled during that period of time, this action was timely commenced (Dkt. No. 16 at P. 2).
Section 500.11 of the Rules of Practice of New York's Court of Appeals provides, in part, that "unless otherwise permitted by the court," motions for reargument to that court "shall be served not later than 30 days after the appeal or motion has been decided. . . ." N.Y. Ct. Rules § 500.11(g)(3). Therefore, this court must consider whether an application filed after the thirty day time period is nevertheless "properly filed" under the AEDPA.
An application is "properly filed" for tolling purposes under the AEDPA "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Hizbullahankhamon v. Walker, 255 F.3d 65, 72 N.5 (2d Cir. 2001) (citing Artuz v. Bennett, 531 U.S. 4, 8 (2000)), cert. denied ___ U.S. ___, 122 S.Ct. 2593 (2002). In support of his claim that the April 2001 Motion for Reconsideration was not "properly filed" under the AEDPA, respondent argues that Johnson's motion was "rejected" by the Court of Appeals because it was "untimely submitted" (Dkt. No. 15 at P. 2). He maintains that because that application "was neither delivered within the rules governing filing, ...