can benefit from the tolling provision contained in 28 U.S.C. § 2244(d)(2), his petition is untimely under the statute.
Section 2244(d)(2) provides that the limitation period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review." Adams filed a 440.10 Motion to vacate his conviction on May 1, 2001, 41 days before the one year period of limitations was to expire. (See Petition at 3; State Aff., ¶ 9.) This 440.10 Motion was "pending" for the purposes of § 2244(d)(2) from May 1, 2001 until November 1, 2001, the date on which Adams was denied leave to appeal to the Appellate Division. (See Certificate Denying Leave.) The one-year period of limitations under § 2244(d)(1)(A) was thus tolled during this six-month period, and did not begin to run again until November 1, 2001. However, Adams did not file his Petition within the 41 days that remained in the one-year statutory period, which expired on December 12, 2001. The instant Petition was filed for present purposes on April 23, 2002, 132 days too late.
In summary, exclusive of tolling, 498 days passed between the date on which Adams's conviction became final and the date on which the Petition was filed. Because this delay exceeds the one-year statutory limitations period, Adams's Petition is not timely under § 2244(d)(1)(A), even taking into account the time that was tolled during the pendency of his 440.10 Motion.
2. Timeliness Under 2244(d)(1)(D)
Having determined that Adams's Petition is not timely under § 2244(d)(1)(A), which requires that such petitions be filed within one year of the date upon which the underlying conviction became final, the Court now turns to consider whether the Petition may nevertheless be timely under § 2244(d)(1)(D), the "newly discovered evidence" provision of the statute. As noted, this subsection allows the one-year limitation period to begin to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).
Adams alleges in his Traverse that "almost three years after [his conviction]," he discovered new evidence through the exercise of due diligence. (Traverse at 4.) Specifically, Adams claims that only after he pleaded with his trial attorney to turn over all information related to his case did he learn of the existence of multiple, inconsistent drawings rendered by the crime scene unit that investigated the crime for which he was convicted. (Id.) The only one of Adams's habeas claims for which this evidence might constitute a "factual predicate" for purposes of § 2244(d)(1)(D) is his claim that his trial counsel was ineffective for failing to utilize significant impeachment evidence. (See Aff. in Support of 440.10 Motion at 1; see generally Petition at 6.) Adams claims that before he discovered these inconsistencies in 2001, he "hadn't any inkling" of their existence. (Traverse at 4.)
The facts alleged in Adams's Traverse concerning this supposed newly discovered evidence, even if true, do not support the application of § 2244(d)(1)(D) to this Petition. The case law is clear that the one-year statute of limitations governing federal habeas corpus relief begins to run from the date on which the facts supporting the claim or claims presented could have been discovered "through the exercise of due diligence . . . regardless of whether petitioner actually discovers the relevant facts at a later date." Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000) (citation omitted; internal quotations omitted); accord Rodriguez v. New York, No. 01 Civ. 9374, 2003 WL 289598, at *12 (S.D.N.Y. Feb. 11, 2003). In other words, "when evidence is newly obtained, but could have been obtained earlier [through the exercise of due diligence], the date when the evidence was actually obtained has no effect on the AEDPA limitation period." Duamutef v. Mazzuca, No. 01 Civ. 2553, 2002 WL 413812, at *9 (S.D.N.Y. Mar. 15, 2002); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance. If § 2244(d)(1) used a subjective rather than an objective standard, then there would be no effective time limit. . . ."); Hector v. Greiner, No. 99 Civ. 7863, 2000 WL 1240010, at *1 (E.D.N.Y. Aug. 29, 2000) ("Evidence in existence at an earlier date, though perhaps unknown to a petitioner, cannot later be described as newly discovered."). Indeed, "newly discovered evidence is, by definition, incapable of discovery through . . . due diligence before or during trial." Hector, 2000 WL 1240010, at *1 (citing United States v. Middlerniss, 217 F.3d 112, 122 (2d Cir. 2000)).
In the absence of a showing of good cause, courts will reject assertions that evidence is "newly discovered" if that evidence existed prior to the time a petitioner's underlying conviction became final. See, e.g., Middlemiss, 217 F.3d at 123 (rejecting a claim of newly discovered evidence in the form of a witness affidavit executed post-conviction because that witness's existence was known to the defendants prior to trial); United States v. Jacobs, 475 F.2d 270, 286 (2d Cir. 1973) ("[A] court must exercise great caution in considering evidence to be `newly discovered' when it existed all along and was unavailable only because a co-defendant, since convicted, had availed himself of his privilege not to testify. This is so even if, as alleged, counsel for the co-defendant making a post-trial affidavit exculpating the movant had not allowed the affiant to be interviewed prior to trial."); Romero v. Senkowski, 950 F. Supp. 573, 578 (S.D.N.Y. 1996) (claim of newly discovered evidence in the form of scholarly articles produced post-conviction was rejected because the underlying issue of mistaken identification was "far from novel"); Hector, 2000 WL 1240010, at *2 (claim of newly discovered evidence in the form of unrelated trial transcript and scholarly forensic pathology materials rejected because they all existed before petitioner's conviction became final); Sorce v. Artuz, 73 F. Supp.2d 292, 297-98 (E.D.N.Y. 1999) (impeachment evidence in the form of newspaper articles that were inconsistent with a prosecution witness's affirmation is not "newly discovered" for § 2241(d)(1)(D) purposes because it existed prior to the date the conviction became final).
Here, the Court sees no reason, and Adams offers none, that explains why the evidence that Adams "obtained through a due diligent [sic] search" conducted "almost three years after he was convicted" could not have been discovered far earlier through the same exercise of due diligence. (Traverse at 4 (emphasis added).) Other than claiming that he only obtained the crime scene drawings by "pleading" with his trial counsel to provide him with copies of all trial-related documents, (Traverse at 4), Adams offers no explanation, elaboration, or detail as to why he could not have obtained that information, which he claims was in his trial attorney's possession, during his trial or immediately following his conviction in 1998. (See Traverse at 4; Aff. in Support of 440.10 Motion at 16.) Because the factual predicate for Adams's claim accordingly could have been discovered prior to the date on which his judgment of conviction became final, the exception provided by § 2244(d)(1)(D) is unavailable.
For the reasons discussed above, it is hereby
ORDERED that respondent Charles Greiner's Motion To Dismiss Pursuant To Fed.R.Civ.P. Rule 12(b)(6) and 28 U.S.C. § 2244(D)(1) dated February 26, 2003 is GRANTED; and it is further
ORDERED that Richard Adams's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody dated April 23, 2002 is DISMISSED.
The Clerk of Court is directed to close this case.
As the petitioner has made no substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir.), cert denied, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000).