The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Pro se petitioner Derrold V. Madison, now known as Diallo Rafik A. Madison, filed the instant writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1994 conviction in the Supreme Court of New York, Kings County. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the court has initially considered this petition. For the reasons set forth below, the court has determined that the petition appears to be time-barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "Act"). Therefore, petitioner is directed to submit an affirmation, within sixty (60) days from the date of this Order, explaining why the petition should not be dismissed as time-barred.
The AEDPA, signed into law on April 24, 1996, provides in relevant part that:
(1) A 1-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 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. 28 U.S.C. § 2244(d); See Lindh v. Murphy, 521 U.S. 320, 327 (1997) (interpreting § 2244 to apply "to the general run of habeas cases . . . when those cases had been filed after the date of the Act"); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (A prisoner whose conviction became final prior to the effective date of the AEDPA is afforded one year after the effective date of the Act in which to file a first habeas petition under § 2254.).
Petitioner's instant application for habeas corpus relief pursuant to 28 U.S.C. § 2254 appears to be time-barred under the Act. In general, the one-year statute of limitations period runs from the date on which the state criminal judgment becomes final. Petitioner alleges he was convicted on October 7, 1994. (Pet. at 1, ¶ 2.) The Appellate Division, Second Department, affirmed the conviction on August 12, 1996. (Pet. at 2, ¶ 9 (d)); People v. Madison, 230 A.D.2d 807 (2d Dep't. 1996). On December 10, 1996, the New York State Court of Appeals denied petitioner leave to appeal. See People v. Madison, 89 N.Y.2d 925 (1996). A judgment of conviction becomes final ninety days from the date the New York State Court of Appeals denies leave to appeal. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Therefore, petitioner's conviction became final on or about March 10, 1997. As the instant petition was filed with this court on January 20, 2009, almost twelve years after the limitations period expired, it is barred by 28 U.S.C. § 2244(d), unless tolling is applicable.
Petitioner alleges that he filed a motion pursuant to N.Y. Criminal Procedure Law section 440.10, on June 19, 2007, which was denied on April 30, 2008. (Pet. at 3, ¶ 11 (a)(3), (a)(8).) Furthermore, petitioner filed a motion to reargue the April 30, 2008 decision which was denied on September 18, 2008. See People v. Madison, Ind. No. 4000/94, slip ...