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August 13, 2005.

GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.

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, 1998.*fn3

  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 review; or
(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 subsection.
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 untimely.


  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 therefore untimely.*fn5

  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) ...

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