The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
On July 23, 2002, Thomas Pugh, Jr. petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently serving three concurrent terms of 10 to 20 years each at the Fishkill Correctional Facility, Beacon, New York, following conviction after jury trial of two counts of Rape in the First Degree and one count of Sodomy in the first degree in Broome County Court, New York. Respondent has filed an answer; Petitioner has not filed a traverse. The Court has determined that the issues have been fully developed by the briefing and oral argument would not assist in deciding the petition.
Petitioner appealed his conviction to the Appellate Division of the New York Supreme Court, which affirmed on January 8, 1998, People v. Pugh, 667 N.Y.S.2d 465 (N.Y.A.D.1998). On April 9, 1998 the New York Court of Appeals denied petitioner's application for leave to appeal to that court, People v. Pugh, 695 N.E.2d 724 (N.Y.1998) (Table). Petitioner timely sought reconsideration in the New York Court of Appeals, which was granted and permission to appeal again denied on July 7, 1998, People v. Pugh, 700 N.E.2d 567 (N.Y.1998) (Table). His conviction became final 90 days later, Monday, October 5, 1998, when his time for petitioning the U.S. Supreme Court for certiorari expired. Because Petitioner filed his petition after April 24, 1996, the time for filing his petition is governed by the one-year limitation period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). Thus his time to file a federal habeas petition expired one year later, October 5, 1999, unless the Petitioner, time were tolled. Pratt v. Greiner, 306 F.3d 1190, 1195 (2d Cir.2002).*fn1 The petition, filed 1,021 days later, was well beyond the one-year limitation. Thus, the critical issue is whether sufficient time was tolled by pending state court motions seeking post conviction or collateral review.
The time for filing a federal habeas petition is tolled during the time that properly filed state post-conviction proceedings are pending. 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 180--82 (2001). On June 9, 1998, before his conviction was final, Petitioner filed a motion with the Broome County Court for an order vacating judgment under N.Y. CRIM. PROC. LAW, § 440.10.*fn2 Also on that date Petitioner filed a motion for re-argument before the New York Supreme Court, Appellate Division, which was denied on July 20, 1998. On September 29, 1998, the Broome County Court denied his § 440.10 motion. On October 28, 1998, Petitioner sought leave from the Appellate Division to appeal denial of his § 440.10 motion, which motion was denied on December 16, 1998. Thus, the time between October 5 and December 16, 1998, 72 days, was tolled. Respondent appears to concede that at this point Petitioner had until December 16, 1999, within which to file his habeas petition in this Court.*fn3
Without further explanation, Respondent contends that this was the date by which Petitioner was required to file his habeas petition in this Court. Unfortunately, that is not the case. Petitioner subsequently filed a series of post-conviction motions in the state courts. To the extent these were properly filed and pending the time was also tolled. "[A] state-court petition 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." Bennett v. Artuz , 199 F.3d 116, 120 (2d Cir.1999). In determining whether pending application for state post-conviction or other collateral review was "properly filed," for purposes of Antiterrorism and Effective Death Penalty Act's (AEDPA) pending-state-petition tolling provision, this Court examines only whether the application was submitted according to state's procedural requirements, such as rules governing notice and time and place of filing; it does not consider whether application was procedurally barred under state successive post-conviction provisions. Id., 199 F.3d at 121--23. The Court does not scrutinize the merits of the motion. Pratt v. Greiner, 306 F.3d at 1192.
On February 9, 2000, Petitioner filed a second motion under § 440.10 in the Broome County Court.*fn4 This motion was denied March 17, 2000. Petitioner then had 30 days, until Monday, April 17, 2000, within which to seek discretionary review by the Appellate Division. N.Y. CRIM. PROC. LAW §§ 450.15; 460.10(4)(a). Time tolled: 69 days.*fn5
On May 17, 2000, petitioner filed a motion with the trial court seeking DNA testing. On May 20, 2000, he filed with the trial court another § 440.10 motion. Both motions were denied on June16, 2000. Petitioner appealed and the Appellate Division affirmed the June 16, 2000 order on November 15, 2001. People v. Pugh, 732 N.Y.S.2d 673 (N.Y.A.D.2001). Petitioner then had 30 days within which to seek review by the New York Court of Appeals. Time tolled: 578 days.*fn6
Although Petitioner filed his petition 1,021 days after his conviction became final, 719 of those days were tolled, resulting in his petition being filed within 302 days, well within the one-year limit. Petitioner's habeas petition was timely filed.
In his petition Petitioner raises five grounds. The first three grounds assert ineffective assistance of counsel: (1) failure of defense counsel to obtain a Ventimiglia ruling;*fn7 (2) failure to seek dismissal of the indictment based upon perjurious testimony; and (3) various asserted errors of omission regarding pretrial, trial, and appellate proceedings. Ground Four alleges a Brady violation.*fn8 Ground Five challenges the sufficiency of the evidence.
Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decisions of the state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court addressing the issue or issues raised in the petition before this Court. Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000). In making this determination, it is irrelevant whether the state court cites the Supreme Court precedents, or is even aware of them; the standard is met "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). In this case the last reasoned decision in this case as to the first three grounds (ineffective assistance of counsel) was the September 29, 1998 decision of the Broome County Court on his first CPL § 440.10 motion; as to the fourth ground the September 4, 2001, the decision of the Broome County Court on a subsequent CPL § 440.10 motion; and as to the fifth ground, that of the Appellate Division on his direct appeal. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The Appellate Division, in affirming on direct appeal, summarized the underlying facts of the crimes of which Petitioner was convicted as follows.
In the early morning hours of March 25, 1995, the victim, a 29-year-old cocaine addict and prostitute, ran naked through the streets of the City of Binghamton, Broome County, knocking on apartments until someone finally answered the door. William Covington, upon opening the door to his home, gave the victim a robe and called the police. She was upset and crying and her face was bruised.
Police investigation revealed that the victim had been hiding out at the apartment of Sandra Bentz, an exotic dancer, attempting to avoid defendant. On the morning of March 25, 1995, defendant arrived at Bentz's apartment and, when he saw the victim, he began slapping her and demanding that she pay him money for drugs she had been holding for him. As defendant contended that he "owned" her, she returned with him, at his insistence, to the apartment of Duane Puryea where defendant had recently been staying. After repeated physical and sexual assaults, a moment came when defendant left the room and an opportunity for escape was presented.
After interviewing the victim and arranging for her transportation to the hospital, police officers went to Puryea's apartment in an attempt to locate defendant. Speaking to Puryea and receiving permission to enter, the officers looked in a back bedroom and viewed what appeared to be the victim's clothes and purse on the floor. The bedroom was secured for further investigation and later, upon the written consent of Puryea, a search of the bedroom occurred. According to Puryea, defendant had been staying at the apartment "on and ...