The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Jose Ayuso, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Ayuso is currently in the custody of the New York Department of Correctional Services, incarcerated at the Great Meadow Correctional Facility. Respondent has answered, and Ayuso has replied.*fn1
I. BACKGROUND/PRIOR PROCEEDINGS
Ayuso was convicted upon a guilty plea in the Oneida County Court of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law, § 265.03) and Assault in the Second Degree (N.Y. Penal Law, § 120.05). The Oneida County Court sentenced Ayuso to 13 years' imprisonment on the weapon possession conviction and a seven-year term on the assault conviction, to be served concurrently. Ayuso was also sentenced to five years' post-release supervision on each conviction. Ayuso timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction and sentence, and the New York Court of Appeals denied leave on March 21, 2006.*fn2 Ayuso's conviction became final 90 days later, June 19, 2006, when his time to file a petition for certiorari in the U.S. Supreme Court expired.*fn3
On September 22, 2004, Ayuso filed a civil rights action in the Western District of New York under 42 U.S.C. § 1983, alleging excessive force.*fn4 This action was transferred by the Western District to this Court and dismissed, without prejudice, at the request of Ayuso on November 1, 2004. Ayuso then filed a second civil rights action under 42 U.S.C. § 1983 on February 3, 2005, again alleging excessive force.*fn5 The second action was administratively closed without prejudice to being reopened for trial once Ayuso was released from prison. The second § 1983 civil rights action is presently on appeal to the Court of Appeals for the Second Circuit.*fn6
On February 11, 2008, Ayuso filed a motion under N.Y. Criminal Procedure Law § 440.10 to vacate his conviction in the Oneida County Court. The Oneida County Court denied Ayuso's § 440.10 motion, and the Appellate Division denied leave to appeal on December 1, 2008. Ayuso filed his petition in this Court on December 17, 2008.
By order of this Court, the sole issue presented for resolution at this time is whether or not the petition was timely filed.*fn7
A state prisoner has one year from the date his or her conviction becomes final within which to file a petition for federal habeas corpus relief.*fn8 Unless tolled, Ayuso's one year expired June 19, 2007. "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" is excluded from the limitation period.*fn9
In this case, Ayuso filed his first post-conviction challenge in the state court on February 11, 2008, nearly eight months after his one year lapsed. Thus, it had no tolling effect.*fn10
Ayuso contends that his federal § 1983 civil rights action was an "other collateral review" that tolled the running of the one-year-limitation period. Citing Walker v. Atuz,*fn11 Ayuso argues that the word "State" in § 2244(d)(2) modifies only "post-conviction," not "other collateral review." Walker was reversed by the Supreme Court sub nom. Duncan v. Walker. Although Ayuso also cites Duncan v. Walker in support of his contentions, he misstates or misunderstands Duncan, which clearly eviscerates Ayuso's position. In Duncan, ...