The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge
By Order of this Court filed October 10, 2007, Petitioner Mark K. McDermott was directed to file an amended petition because his original petition appeared to be time-barred. Dkt. No. 2. McDermott was advised that, if he believed that his petition was not time-barred, any amended petition was to include information demonstrating that the petition was timely filed. Id. McDermott has filed an amended petition, which is now before the Court for review. Dkt. No. 3.
As noted in the October 10, 2007 Order, 28 U.S.C. § 2244(d)(1) provides that federal habeas petitions challenging a judgment of a State Court are subject to a one year statute of limitations. Specifically, 28 U.S.C. § 2244(d) states:
(1) A one year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Under subsection (A), a judgment of conviction becomes 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). McDermott was sentenced in state court on February 11, 2003. Dkt. No. 3 at 10. Under New York law, McDermott had thirty days from that date, or until March 13, 2003, to file a notice of appeal to the appropriate appellate court. See N.Y. Crim. Proc. Law § 460.10(1)(a). Since McDermott did not file an appeal, direct review concluded thirty days after he was sentenced, when the time to file a notice of appeal to the Appellate Division expired, and his conviction therefore became final on March 13, 2003.
See Bowman v. Walsh, No. 07-CV-3586, 2007 WL 2815711, at *1 (E.D.N.Y. Sep. 25, 2007) (citing Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002)). Thus, the one year statute of limitations began to run on March 13, 2003.*fn1 Absent tolling, McDermott's statute of limitations expired on or about March 13, 2004. Since McDermott did not file any collateral or post-conviction motions until January 27, 2005 - well after the statute of limitations expired - none of the applications tolled the statute. See Dkt. No. 3 at 11.
McDermott, however, argues that his conviction did not become final until March 11, 2004, the date on which his time to file a motion seeking permission to file a late appeal expired. Dkt. No. 3 at 11. McDermott states that because he was sentenced on February 11, 2003, he had, under New York state law, thirty days from that date to file a Notice of Appeal. Thereafter, upon the expiration of that thirty days, petitioner had one year to file an application, pursuant to CPL § 460.30, for permission to file a late Notice of Appeal.
Dkt. No. 3 at 3. McDermott's argument is without merit. The time period in which to file an application for a late appeal does not delay the start of the statute of limitations, but merely tolls the running of an unexpired one-year time period. See Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001) (the time period for filing an application for permission to file a late appeal does not delay the start of the statute of limitations); see also Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005) (an application to reopen a direct appeal is a collateral attack to the conviction and not part of the direct appeal). Moreover, "the filing of a motion to extend the time to appeal or to file a late notice of appeal does not 'restart' the AEDPA limitaion period" if the period has already expired. Bethea, 293 F.3d at 579; see also Miller v. Jeffreys, No. 3:05 CV 1989, 2006 WL 3469638, at *5 (N.D. Ohio Nov. 30, 2006) ("Although filing a motion for a delayed appeal may toll the running of a pending, unexpired one-year limitations period, it will not 'revive' the statute, or cause it to begin running anew."). Since McDermott's conviction became final on March 13, 2003, and ...