UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
October 5, 2006
THOMAS ROGOWSKI, PETITIONER,
JAMES L. PLESCIA, SUPT., WASHINGTON CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Court Judge
DECISION and ORDER
By prior Order of this Court, petitioner Thomas Rogowski was afforded thirty days within which to file an amended petition indicating that his petition for a writ of habeas corpus is not time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").*fn1 Dkt. No. 5.*fn2
Petitioner's amended petition is before this Court for consideration. Dkt. No. 6.
As noted in the Court's prior Order, petitioner's conviction became "final" for purposes of the AEDPA no later than January 1, 1997. Accordingly, the statute of limitations for filing a habeas corpus petition pursuant to 28 U.S.C. § 2254 expired one year later on January 1, 1998, except to the extent that it was tolled by properly filed post-conviction state court proceedings. In this case, where the petition revealed that the only state court action commenced by petitioner to challenge his conviction was a CPL 440.20 motion which was denied by the state court in January, 2003, it appeared that the petition was time-barred.*fn3 In light of petitioner's pro se status, however, he was afforded the opportunity to establish that the petition was timely filed.
In his amended petition, petitioner does not provide any additional information regarding the state court CPL 440.20 motion to demonstrate that this petition was timely filed. While the amended petition states that petitioner also filed a separate CPL 440.20 motion challenging an aspect of his sentencing, petitioner does not provide any information regarding the date on which that proceeding was commenced or when it was concluded. Moreover, the Court notes that petitioner does not contend that the doctrine of equitable tolling, applicable only in the "rare and exceptional circumstance," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citation omitted), is applicable here.
Upon review, the Court finds that the amended petition does not establish that this section 2254 petition, filed more than seven years after the limitations period expired in January, 1998, is timely filed under the AEDPA. Accordingly, this action is dismissed.
WHEREFORE, it is hereby
ORDERED, that this action is dismissed as time-barred for the reasons set forth herein and in the Court's prior Decision and Order in this action (Dkt. No. 5), and it is further
ORDERED, that the Clerk serve a copy of this Order on the petitioner.
IT IS SO ORDERED.