The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Donald Taylor brings this habeas petition pursuant to 28 U.S.C. § 2254. Petitioner asserts that N.Y. Penal Law*fn1 § 265.02(1)*fn2 , Criminal Possession of a Weapon in the Third Degree, to which petitioner pleaded guilty, is unconstitutionally broad to the extent that it renders the statute vague and ambiguous and violates his Second Amendment right to bear arms. For the reasons set forth below, petitioner's application is dismissed.
On August 30, 2002, at approximately 7:00 a.m., pursuant to the execution of a search warrant, the police recovered in petitioner's bedroom a 12 gauge shotgun, a .35 caliber rifle, a .22 caliber rifle, a sawed-off shotgun, and a .38 caliber revolver.
Thereafter, petitioner was charged, by indictment, filed on March 17, 2003, with two counts of Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(1), two counts of Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal Law § 265.01(1), and two counts of Administrative Code Violation of Unlawful Possession of a Rifle Without a Permit, N.Y.C.C.R. Admin. Code § 10-303.
On March 23, 2004, petitioner entered a plea of guilty to violating one count of § 265.02(1). Petitioner, in response to the trial court's query, stated he had sufficient time to discuss his plea with his attorney and that he was satisfied with his attorney's representation. (Petitioner's Rep. Br. Ex. E at 16) ("Plea Minutes"). The court advised petitioner he was giving up his right to a trial by jury. Plea Minutes at 16-17. Petitioner stated that besides the promise of a five-year period of probation, no one made any other promises or threats to force him to plead guilty. Plea Minutes at 17. Petitioner further waived his right to appeal from his conviction on non-jurisdictional matters, following explanation of the waiver by the court and discussion with his attorney. Plea Minutes at 18-20. Petitioner then allocuted to possessing a .38 caliber handgun on August 30, 2002. Plea Minutes at 20. On May 14, 2004, judgment was entered sentencing petitioner to a five-year term of probation.
Petitioner did not take an appeal. On April 25, 2006, petitioner, represented by the same counsel who represented him during his plea, sought collateral review of his conviction in the Supreme Court of New York, Kings County, applying to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) ("§ 440 motion").*fn3 The New York Supreme Court denied this motion on May 19, 2006, and, on September 8, 2006, the Appellate Division denied petitioner's application seeking leave to appeal. Petitioner filed his habeas petition in this Court on March 19, 2007.
Respondent argues that petitioner's application is barred by the 1996 Antiterrorism and Effective Death Penalty Act's ("AEDPA") limitations period. Petitioner asserts that his § 2254 petition is timely, as the limitations period began to run only after leave to appeal the trial court's decision on his § 440 motion was denied on September 8, 2006. In the alternative, petitioner asserts AEDPA's limitations period is not applicable because he is actually innocent.
Under AEDPA, a one-year period of limitations applies to an application of a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Under the provisions relevant to this case, the limitations period runs either from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, 28 U.S.C. § 2244(d)(1)(A), as respondent argues, or from the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence, 28 U.S.C. § 2244(d)(1)(D), as petitioner argues. This one-year period is tolled while any properly filed application for state post-conviction or other collateral relief is pending. 28 U.S.C. § 2244(d)(2).
Petitioner asserts that § 2244(d)(1)(D) is applicable. Petitioner then argues that the factual predicate for his claim did not exist until the Appellate Division, on September 8, 2006, denied leave to appeal the trial court's decision on petitioner's § 440 motion. In his § 440 motion, petitioner raised the same claims as he does here - that § 265.02(1) is unconstitutional because the statute is overbroad, and thus vague and ambiguous, and violates his Second Amendment right to bear arms. Petitioner has alleged no newly discovered facts which form the predicate of his claims and which, by their absence, would have precluded him from bringing these claims in a § 2254 petition prior to March 19, 2007.
Petitioner cites Johnson v. U.S., 544 U.S. 295 (2005) and Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2003) in support of his contention that the denial of leave to appeal constitutes a factual predicate under § 2244(d)(1)(D). These cases are inapposite. In Johnson, the Supreme Court determined that vacatur was a 'fact', commencing AEDPA's one-year limitations period, where the vacatur concerned a state court conviction that had been used to enhance petitioner's federal sentence, and petitioner sought review of his federal sentence. Thus, the petitioner in Johnson was unable to assert his claim concerning his sentence until his prior conviction had been vacated. Similarly, in Easterwood, petitioner happened upon a case in his prison library which detailed how the sole expert who had testified for the prosecution at Easterwood's trial was suffering from severe bipolar disorder which may have impaired his diagnostic judgment at the time he testified against Easterwood. Thus, the 10th Circuit determined the discovery of the unrelated case by Easterwood began his one-year limitations period anew. Petitioner, by contrast, asserts that rejection of his legal theories by the New York courts, which were available to him when his sentence became final, is the factual predicate for his claim. The Appellate Division's denial of leave to appeal does not form any basis of petitioner's claim, other than as a part of his argument that § 2241(d)(1)(D) is applicable in determinating the limitations period. It therefore does not constitute a factual predicate under § 2241(d)(1)(D).
Moreover, even if the denial of leave to appeal were a factual predicate under § 2244(d)(1)(D), by waiting nearly two years to seek collateral review in state court, pursuant to § 440.10(1)(h), petitioner cannot be said to have acted with due diligence, as § 2244(d)(1)(D) requires. See Johnson, 544 U.S. at 311 (2005) (petitioner, who waited over twenty-one months after judgment in federal criminal case was final to seek ...