The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
Petitioner Derrel Austin ("Austin"), acting pro se, seeks
relief pursuant to 28 U.S.C. § 2254,*fn1 alleging that his
conviction in Supreme Court, Erie County, State of New York, on
October 27, 1995, was unconstitutionally obtained and that he
received an excessive sentence. Austin's conviction and sentence
were affirmed by the New York Supreme Court Appellate Division,
Fourth Department on March 13, 1998,*fn2 and leave to appeal
was denied by the New York Court of Appeals on June 18,
By Order of this Court, filed October 23, 2002 (Docket No. 3),
Austin was advised that his petition appeared untimely and was
directed to file information addressing the issue of timeliness
under 29 U.S.C. § 2244(d)(1), which imposes a one-year statute of
limitations on the filing of § 2254 habeas petitions. The
limitations period is counted from
(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;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the [United
States] Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(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
28 U.S.C. §§ 2244(d)(1) and (2), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"),
Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
On November 5, 2002, petitioner filed his response (Docket No.
4). The Court found that petitioner had failed to provide sufficient
information to make a determination on timeliness and, because
petitioner is pro se, allowed him to file an additional
response explaining the reasons for his delay in appealing the
state court's denial of a collateral attack on his conviction
(Docket No. 5).
Petitioner filed his additional response on December 16, 2002
(Docket No. 6) and, by Order filed on December 20, 2002, the
Court deemed the petition timely under 28 U.S.C. § 2244(d)(1).
The Order does not state whether the petition, which is untimely
on its face, was "deemed timely" based upon an application of
statutory tolling under § 2244(d)(2), or equitable tolling.
Respondent filed an answer and memorandum of law on January 30,
2003, arguing that the petition must be denied because of
untimeliness and on other grounds (Docket Nos. 8 and 9).
It is well established that a district court's interlocutory
orders and rulings are subject to modification by the court at
any time prior to final judgment. In re United States,
733 F.2d 10, 13 (2d Cir. 1984). This Court has examined respondent's
timeliness arguments and Austin's submissions and, as explained
fully below, now finds that the petition must be dismissed as
As already noted, Austin's application for leave to appeal to
the New York Court of Appeals was denied on June 18, 1998. Thus,
his conviction became final on September 16, 1998, the day on
which his time to seek direct review by writ of certiorari to the
United States Supreme Court expired. Walker v. Artuz,
208 F.3d 357, 358 (2d Cir. 2000), rev'd on other grounds sub nom. Duncan v. Walker, 533 U.S. 167,
121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001). Austin did not file this
habeas corpus petition until October 15, 2002, over four years
after his conviction became final. On its face, then, the
petition was filed well beyond the one-year statute of
limitations period established by the AEDPA. However, the
limitations period is tolled for the time during which a properly
filed application for State post-conviction or other collateral
review is pending, 28 U.S.C. § 2244(d)(2), and may be equitably
tolled in the rare and exceptional circumstance, Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (quoting Turner v.
Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied,
528 U.S. 1007, 145 L. Ed. 2d 389, 120 S. Ct. 504 (1999)). Therefore,
the timeliness of the petition depends, in the first instance, on
the extent to which any post-conviction applications or motions
tolled the statute of limitations.
On April 6, 1999, Austin filed a N.Y. CRIM. PROC. LAW § 440.10
motion to vacate his conviction. The 201 days that elapsed
between Austin's conviction becoming final and his filing of the
§ 440.10 motion are not subject to tolling because no properly
filed application for post-conviction or other collateral review
was pending during that period. Statutory tolling did commence
with Austin's filing of his § 440.10 motion, which was
subsequently denied by the Fourth Department on May 26, 2000.
Austin had 30 days thereafter in which to file an application
seeking leave to appeal, but did not do so. Thus, the limitations
period was tolled from April 6, 1999 through June 26,
2000.*fn4 Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.
1999) (holding that, under 28 U.S.C. § 2244(d)(2), a state-court application "is `pending' from the time it is first filed until
finally disposed of and further appellate review is unavailable
under the particular state's procedures"), aff'd, 531 U.S. 4,
121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).
Austin then had 164 days remaining on the one-year limitations
period, which expired on December 7, 2000. No further state-court
application for post-conviction or other collateral review was
filed prior to the expiration of the limitations period. Austin's
habeas petition, which was not filed until October 15, 2002, is
Austin contends that the Court should consider his petition
despite its statutory untimeliness because: (1) the requirements
of state exhaustion made it impossible for him to submit his
habeas petition sooner; (2) he lacked education and knowledge;
(3) he was confined to his cell without access to the facility's
law library; (4) ...