The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge
Presently before the Court is a second amended Habeas Corpus Petition filed by Valfonso Dewitt ("Petitioner" or "Dewitt") pursuant to 28 U.S.C. § 2254. Dkt No. 10.
In his original Petition, Dewitt sought to challenge a December 21, 2000 conviction rendered in Cayuga County Court wherein he pled guilty to possession of a controlled substance. Dkt No. 1. A May 1, 2006 Order noted that the Court was unable to determine if the Petition was timely filed because Petitioner had not supplied the dates that his CPL §440 Motions were filed and decided. See Dkt. No. 5.
Petitioner filed an amended Petition on June 19, 2006. Dkt. No. 10. The Court found that the amended Petition was time barred, but noted that "Petitioner alleges that he has a Motion to vacate or reduce his sentence, based upon recent amendments to the Rockefeller Drug Laws, pending in a State court. See Petition at 4(A). In the event Petitioner can establish that he filed that Motion within the statute of limitations discussed above, he may file an Amended Petition that provides the Court with all filing and decisional dates of his various actions, including those that remain pending in State court." Dkt. No. 13.
Petitioner has now filed his second amended Petition, and has provided the Court with documentation relating to the various proceedings that he pursued in the state courts.*fn1 Dkt. Nos. 14-15. These documents reveal that Petitioner's Motion for Re-sentencing was not actually filed until March 25, 2005.*fn2 By that date, based upon the documents Petitioner has now presented, at least 484 days has lapsed on Petitioner's statute of limitations that was, in its totality, 455 days. Accordingly, the Petition is untimely.
Petitioner also asks this Court to apply equitable tolling to this case. However, equitable tolling is only available when "' extraordinary circumstances ' prevent a prisoner from filing a timely habeas petition." Warren v. Garvin , 219 F.3d 111, 113 (2d Cir. 2000)(quoting Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (emphasis added), cert. denied , 531 U.S. 840 (2000). Petitioner has made no showing of any factual basis upon which this Court could apply the doctrine of equitable tolling to this action. Accordingly, this action must be dismissed as untimely.
ORDERED, that this action DISMISSED as untimely, and it is further ORDERED, that the Clerk serve a copy of this Order on the Petitioner in accordance with the Local Rules.