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SMITH v. DUNCAN

United States District Court, Southern District of New York


April 22, 2003

WARREN SMITH, PETITIONER,
v.
GEORGE DUNCAN, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Denise Cote, United States District Judge.

MEMORANDUM OPINION AND ORDER

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective on April 26, 1996. Among other things, AEDPA amends 28 U.S.C. § 2244 to require that habeas petitions brought under 28 U.S.C. § 2254 be filed no later than one year after the completion of state court direct review. Warren Smith's ("Smith") petition was received by this Court's Pro Se Office on January 21, 2003. It would appear that this petition is timely.

On July 9, 2001, the New York Court of Appeals affirmed Smith's conviction and denied his motion for leave to appeal pursuant to N.Y.C.P.L.R. § 460.20. As a result, AEDPA's one year time limit began to run 90 days later, on October 7, 2001. 28 U.S.C. § 2244 (d)(1).

Smith also filed a motion pursuant to N.Y.C.P.L.R. § 440.10(1)(h) that was denied on April 18, 2001. On December 11, 2001, Smith filed a motion pursuant to N.Y. C.P.L.R. §§ 450.90(1) and 460.20 in state court. This motion was denied by the Supreme Court of New York, Appellate Division, First Department on December 24, 2002. Smith has no other appeal pending in state court.

The Court having concluded that the petition should not be summarily dismissed pursuant to Rule 4 of the Rules governing Section 2254 cases in the United States District Courts, it is hereby

ORDERED that the respondent file an answer to the petition or other pleading in response thereto, along with the record on appeal, appellate briefs, and relevant trial and post-conviction records and transcripts, no later than June 20, 2003.

IT IS FURTHER ORDERED that the Clerk of Court serve copies of this Order and of the petition by certified mail upon the respondent, the Attorney General of the State of New York and the District Attorney of New York.

IT IS FURTHER ORDERED that petitioner shall have thirty days from the date on which he is served with respondent's answer to file a response. The petition will be considered fully submitted as of that date.

IT IS FURTHER ORDERED that this action is referred to Magistrate Judge Francis. All correspondence and requests should be sent to the attention of Judge Francis.

SO ORDERED:

20030422

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