The opinion of the court was delivered by: Seybert, District Judge
AMENDED*fn1 MEMORANDUM & ORDER
The Petitioner, Angelo Esposito ("Petitioner"), seeks a writ of habeas corpus with regard to his conviction for, inter alia, murder in the second degree. Respondent, Dale Artus, Superintendent of the Clinton Correctional Facility, moves to dismiss on the ground of untimeliness. For the reasons set forth below, the petition is denied and dismissed on the ground that it is untimely pursuant to 28 U.S.C. §§ 2244 and 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA").
In the morning of December 28, 1991, Petitioner taunted patrons of a gay bar, Pal Joey's, in Bellmore, New York. Shortly thereafter, he left the ShopRite parking lot, which was located across the street from the bar, in pursuit of a vehicle driven by Henry Marquez ("Marquez"), a United States Treasury Agent. Petitioner rammed his car, a 1988 Pontiac Lemans, repeatedly into Marquez's car, which resulted in Marquez being run off the road and into a tree. Marquez suffered fatal injuries. Several days later up in Albany County, Petitioner set fire to the vehicle he used to force Marquez off the road. For these acts, Petitioner was indicted on several counts, including Murder in the Second Degree (depraved indifference).
At trial, the Government's proof included testimony from individuals that Petitioner had accosted at the parking lot, one of whom provided the police with a description of the vehicle, a red car, and the license plate number of the car Petitioner was driving. Police Officer, James Quinn ("Quinn"), who responded to the complaint, later observed Petitioner ramming his car into Marquez's automobile several times. A short time later, Quinn came upon Marquez's vehicle which had crashed into a tree. The red car was nowhere in sight.
Subsequently, the police did a license plate check that led them to Petitioner. In addition, two of the individuals that were attacked in the parking lot identified the Petitioner as the individual who accosted them. On January 22, 1992, a vehicle was found in Colonie, New York, heavily damaged by fire. A piece of aluminum from a transmission bell housing, which was found at the intersection where Marquez was forced off the road, matched perfectly to the broken bell housing found on the burned-out Lemans - the car Petitioner was driving the night Marquez died.
Following Petitioner's arrest on January 17, 1992, he waived his Miranda rights and made several statements. Petitioner conceded to the following: he knew Pal Joey's was a gay bar, he and his friend harassed people in the ShopRite parking lot, another vehicle sped out of the parking lot at the same time he did, and he screamed at the other driver as they left the parking lot. Petitioner claimed that he lost sight of the other vehicle when the road ended, and he blew out his right front tire as he made a left turn. The next day, he had a friend install a new tire and rim. Because of the previous night's events and the fact that his girlfriend's family still owed money on the car, Petitioner stole the car and set it on fire.
During Petitioner's trial, his friend, Dennis Pannullo ("Pannullo"), testified that he was with Petitioner on the morning of the incident, that they had been drinking, and that they taunted some people in the ShopRite parking lot. Pannullo further testified that a man in a white car drove up next to Petitioner's car and then offered to buy him a drink. After an oral exchange between Petitioner and the man in the white car, he drove his white car into the side of Petitioner's open car door. Pannullo testified that at that point he kicked the white car, and Petitioner circled the lot and then drove his car into the white car several times, damaging the driver's side door.
Pannullo further testified that Petitioner drove out of the parking lot and was followed very closely behind by the man in the white car. The Petitioner hit the brakes, causing the white car to strike him from behind. Pannullo stated that as Petitioner sped away, he punctured one of his tires on the curb. Pannullo claimed that the pair lost sight of the white car and went home. Another defense witness, Donald Wecklein, an accident reconstruction expert, testified that the damage to the white car was a result of Petitioner moving slowly or while stationery. The damages would have been different had Petitioner been moving at a fast speed.
I. State Court Proceedings
Petitioner's trial commenced in Suffolk County Court on April 26, 1993. Petitioner was convicted on May 4, 1993, of Murder in the Second Degree, Attempted Assault in the Second Degree, two counts of Harassment, Tampering with Physical Evidence, Arson in the Third Degree, and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree. On June 30, 1993, the court sentenced Petitioner as a second felony offender to an indeterminate prison term of twenty-five years to life on the murder conviction and lesser concurrent terms on the other charges.
On June 5, 1995, the New York Supreme Court, Appellate Division, Second Department ("Appellate Division") affirmed the judgment of conviction. See People v. Esposito, 627 N.Y.S.2d 739 (N.Y. App. Div. 1995). On September 27, 1995, the New York Court of Appeals denied leave to appeal. See People v. Esposito, 86 N.Y.2d 841 (1995). Petitioner subsequently sought reconsideration of the Court of Appeals' denial. Petitioner never sought a writ of certiorari from the United States Supreme Court.
Five years after Petitioner's judgment of conviction became final, Petitioner moved to vacate his judgment of conviction under N.Y. C.P.L. § 440.10 on November 17, 2000. On May 14, 2001, the County Court denied Petitioner's motion without a hearing. On August 14, 2001, the Appellate Division denied Petitioner leave to appeal the denial of the motion. On August 20, 2002, Petitioner filed a motion for a writ of error coram nobis in the Appellate Division, alleging ineffective assistance of appellate counsel.
On December 27, 2002, Petitioner filed a second motion to vacate judgment under N.Y. C.P.L. § 440.10, alleging that he was denied Brady material. On May 21, 2003, the County Court denied that motion. In July 2003, Petitioner moved to reargue the motion, and on September 18, 2003, the Appellate Division ...