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July 3, 2003


The opinion of the court was delivered by: James Francis, Magistrate Judge


In 1993, William Ortiz brought a petition for a writ of habeas corpus challenging his 1982 conviction in New York State Supreme Court, Bronx County for the sale of narcotics. On March 25, 1993, the petition was dismissed without prejudice to allow Mr. Ortiz an opportunity to exhaust his state remedies. The petitioner proceeded to file three separate motions in state court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Each was denied, the last decision being rendered on June 23, 1999. On December 21, 1999, the Appellate Division denied Mr. Ortiz's application for leave to appeal from that determination. Then, on September 2, 2002, the petitioner filed a document characterized as a "Motion for Reinstatement of Post Conviction Petition Filed Pursuant to 28 U.S.C. § 2254."

Since Mr. Ortiz's prior petition was not stayed but dismissed without prejudice, his current application is properly viewed as a new or refiled petition. As such it is time-barred. Indeed, in 2001 Mr. Ortiz filed a petition based on the same claims. Ortiz v. Menifee, 01 Civ. 0839 (JSR) (JCF). In that case, I recommended that the petition be dismissed because more than a year had elapsed between April 24, 1996, the date of enactment of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), which established a one-year statute of limitations, and the submission of the petition on December 5, 2000, even tolling the limitations period for the time the petitioner's state proceedings were pending. (Report and Recommendation dated Oct. 9, 2001). The Honorable Jed R. Rakoff adopted my recommendation and dismissed the petition on January 29, 2002, and, when the petitioner appealed, the Second Circuit denied a certificate of appealability and dismissed the appeal. The same reasoning that applied to the petition before Judge Rakoff applies with even greater force here. More than two years elapsed from determination of the last appeal in Mr. Ortiz's state proceedings until he made his "motion" in this case.

In an excess of caution, I issued an Order to Show Cause dated May 5, 2003, inviting the petitioner to explain why his instant application should not be dismissed as time-barred. He responded in a document dated May 21, 2003, in which he makes essentially three arguments. First, he suggests that the AEDPA limitations period may not apply at all to his application to "reinstate" his petition. Second, he argues that precluding review on the merits would be an unconstitutional suspension of the right of habeas corpus. Third, Mr. Ortiz maintains that the AEDPA was not intended to apply retroactively to petitions filed prior to its enactment. None of these contentions has merit.

The original petition in this case was not stayed; it was dismissed. Indeed, Mr. Ortiz appealed the order of dismissal, but the Second Circuit dismissed the appeal. Accordingly, there is no pending action to "reinstate," and Mr. Ortiz's application must therefore be viewed as a submission of a new petition that is subject to analysis under the AEDPA.

Next, the mere fact that Mr. Ortiz's petition is barred by the statute of limitations and will not be heard on the merits does not constitute a suspension of habeas corpus in violation of Article I, section 9, clause 2 of the United States Constitution. The Second Circuit has ruled that

because [the] AEDPA's one-year statute of limitations leaves habeas petitioners with some reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy inadequate or ineffective to test the legality of detention, and therefore does not per se constitute an unconstitutional suspension of the writ of habeas corpus.
Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000) (internal quotation marks and citation omitted); see also Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998). Here, Mr. Ortiz had every opportunity to refile his petition within a year of the completion of the state court proceedings. Therefore, enforcement of the time bar does not violate his constitutional rights.

Finally, the AEDPA is not being applied retroactively in this case. The statute of limitations began to run at the completion of the state court proceedings in 1999, and Mr. Ortiz filed his current application in 2002. Both of these events occurred after the AEDPA's enactment in 1996.

Mr. Ortiz's refiled petition is therefore time-barred. Accordingly, I recommend that his application be denied and the petition be dismissed.

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, Room 1320, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.


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