is pending shall not be counted toward any period of limitation under this subsection."
In determining the statutory window for the filing of Williams's Petition, subsection (A) of § 2244 is the applicable provision. For purposes of the AEDPA, "direct review" includes the opportunity to file for a writ of certiorari from the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (noting that "federal courts have long considered the phrase `final by conclusion of direct review' to include an opportunity to seek certiorari. . . . We agree and hold that the AEDPA limitations period . . . does not begin to run until . . . either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." (citations omitted; internal quotations omitted)); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (noting that petitioner's conviction became final for AEDPA purposes "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired. . . ."). The time for seeking such review expires 90 days after entry of judgment. See Supreme Court Rule 13 ("[A] petition for a writ of certiorari to review a judgment in any case . . . is timely when it is filed . . . within 90 days after entry of the judgment."). The New York Court of Appeals denied Williams leave to appeal on September 2, 1999, and this judgment became final 90 days thereafter, on December 1, 1999.
Williams next sought post-conviction relief in a writ of error coram nobis on January 31, 2001.*fn2 (See State's Affidavit at 5.) Effectively, the Court's inquiry should end at this point because as of January 31, 2001, more than one year had already elapsed from the date Williams's conviction became final, rendering any subsequent basis that would otherwise toll the applicable limitations period inapposite. Tolling does not reset, but merely pauses the statute of limitations clock. See Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000) (holding that AEDPA one-year limitations period does not restart after being tolled). Williams's Petition filed on December 26, 2002 is thus untimely.
Williams, however, urges that the limitations period be equitably tolled by the Court. He suggests that "[i]n this case the statue [sic] was equitably tolled since the State of New York does not have a statue [sic] of limitation on filing an Article 440 motion." (See Traverse at 3.) Williams fails to explain exactly why this situation should entitle him to equitable tolling, instead only admonishing the Court to "[l]et the record speak for itself." (See id.) Mindful that arguments of pro se petitioners should be "read liberally" to "raise the strongest arguments that they suggest," Henderson, 89 F.3d at 79, the Court understands Williams to suggest that it would be unfair to permit the oneyear limitation period to lapse prior to a final determination of all post-conviction procedures at the state level, including an application under § 440. Williams's argument fails to provide the Court with the requisite basis for equitably tolling the AEDPA statute of limitations.
Williams is correct in his assertions that "the one year period of limitations described in AEDPA . . . is not a jurisdictional bar," (see Traverse at 3), and that the period can be equitably tolled. See Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("AEDPA's one-year period is a statute of limitations rather than a jurisdictional bar so that the courts may equitably toll the period." (citations omitted; internal quotations omitted)); accord McGinnis, 208 F.3d at 17. Nonetheless, it is well-settled that "[e]quitable tolling applies only in the `rare and exceptional circumstance,'" id at 17 (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)) (second alteration in original), and that it is applied as "a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights. . . ." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (citations omitted; emphasis added; internal quotations omitted). The Court sees no basis, and has been presented with none, to conclude that Williams faced a "rare and exceptional circumstance," or was prevented "in some extraordinary way" from timely filing his Petition within one year after final judgment as the AEDPA prescribes. Accordingly, the Court finds no basis to distinguish Williams's Petition from those of countless others similarly bound by applicable state and federal exhaustion and limitations provisions. See Asencio v. Senkowski, No. 00 Civ. 6418, 2000 WL 1760908, *2 (S.D.N.Y. Nov.30, 2000) (noting in its refusal to equitably toll that petitioner's explanation was "really not distinguishable from the conditions of numerous prisoners[ ] who are hampered by institutional restrictions. . . .").
Moreover, the Second Circuit has noted that:
[t]he word `prevent' requires the petitioner to
demonstrate a causal relationship between the
extraordinary circumstances on which the claim for
equitable tolling rests and the lateness of his
filing, a demonstration that cannot be made if the
petitioner, acting with reasonable diligence, could
have filed on time notwithstanding the extraordinary
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (emphasis added); see Hizbullahankhamon, 255 F.3d at 75 (holding that in order to show that "extraordinary circumstances `prevented' him from filing his petition on time, petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing. . . ." (internal quotations omitted)).
Not only has Williams not made any showing of an "extraordinary" or "rare and exceptional" circumstance warranting equitable tolling, he also fails to show that his circumstances "prevented" him from filing his Petition on time. Even if New York law does not impose a limitation period for filing an application under § 440.10, it also does not prevent prisoners from doing so within a given time period. In other words, Williams was free to file his § 440.10 motion within one year of his conviction becoming final, and thus be in a position to comply with the one-year limitations period embodied in AEDPA § 2244(d)(1), even though New York law did not require him to do so.*fn3
III. CONCLUSION AND ORDER
For the reasons discussed above, it is hereby
ORDERED that Williams's Petition for a writ of habeas corpus 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. 2000).