MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL, District Judge.
Pro se petitioner Michael Atkins seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner seeks to vacate a 2004 sentence entered pursuant to a negotiated plea bargain in the New York State Supreme Court, Bronx County. The respondent moves to dismiss the petition as time-barred under the one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). For the reasons explained below, the respondent's motion to dismiss is granted.
On March 31, 2004, Acting Justice Steven Barrett of the New York State Supreme Court sentenced the petitioner to consecutive prison terms after the petitioner pleaded guilty to robbery in the third degree and criminal impersonation in the first degree under Indictment Number 2051/2003 ("IN 2051"). (See Killian Decl. ¶ 3 & Ex. 1.) Justice Barrett also imposed another consecutive sentence for attempted assault in the second degree under Superior Court Information Number 1261/2004 ("SCI 1261"). (See Killian Decl. ¶ 3 & Ex. 2.) The petitioner did not file a notice of appeal in either case. (Killian Decl. ¶ 4.)
On April 20, 2010, more than six years after sentencing, the petitioner moved under Section 440.10 of the New York Criminal Procedure Law to vacate the IN 2051 judgment on grounds of ineffective assistance of counsel. (See Killian Decl. Ex. 5.) On June 15, 2010, the petitioner filed another Section 440.10 motion, arguing that the judgments entered under both IN 2051 and SCI 1261 should be vacated because Justice Barrett had failed to renew his oath to act as a Supreme Court Justice and was therefore not empowered to adjudicate felonies. (See Killian Decl. ¶ 6 & Ex. 7.) Both motions were denied, and leave to appeal was denied. (See Killian Decl. Exs. 5, 6.) The petitioner contends that these post-conviction proceedings tolled the statute of limitations under various provisions of AEDPA and thus that this action is not time-barred under § 2244(d).
AEDPA imposes a one-year statute of limitations on federal habeas corpus petitions by persons in custody pursuant to state court judgments. The statute generally begins to run on "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). Because the petitioner did not seek appellate review, his judgment became final thirty days after it was entered. See N.Y. Crim. Proc. Law § 460.10(1)(a); Bethea v. Girdich , 293 F.3d 577, 578 (2d Cir. 2002) (per curiam). The petitioner therefore had until April 30, 2005 (thirty days plus one year) to file his petition in federal court, unless the statute of limitations was tolled.
AEDPA tolls the statute of limitations for state prisoners filing habeas petitions in federal court during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment." 28 U.S.C. § 2244(d)(2). However, a post-conviction proceeding does not toll the statute if it is commenced more than one year after the judgment becomes final because it "does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). The petitioner did not initiate any state court proceedings until April 20, 2010, when he filed his first Section 440.10 motion. This was nearly five years after the statute of limitations had expired and could not "reset" the statute of limitations. See, e.g., Smith , 208 F.3d at 17.
The petitioner argues that the statute of limitations did not run until he could obtain documents regarding Justice Barrett's oath of office. If "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence" is after the date on which judgment became final, the statute of limitations runs from this later date. 28 U.S.C. § 2244(d)(1)(D).
The petitioner argues that because his second Section 440.10 motion (dated June 15, 2010) relied on Justice Barrett's qualifications, the statute of limitations should not have run until the petitioner could have discovered facts relating to those qualifications. In support, the petitioner provides a letter dated March 6, 2009, from the Unified Court System pursuant to a "recent request" under the Freedom of Information Law and enclosing copies of documents relating to Justice Barrett's status of office. (Pet'r's Opp'n to Def.'s Mot. to Dismiss Ex. A.) Although the pertinent documents are not attached to the petitioner's memorandum, they are presumably the documents that the petitioner attached to his June 15, 2010 motion to vacate his sentences. (See Killian Decl. Ex. 7.)
For § 2244(d)(1)(D) to apply, the petitioner bears the burden of demonstrating due diligence in obtaining the oath of office documents. See Shabazz v. Filion, 402 F.Appx. 629, 630 (2d Cir. 2010) (summary order) (citing Johnson v. United States , 544 U.S. 295, 311 (2005)); Adams v. Greiner , 272 F.Supp.2d 269, 274-75 (S.D.N.Y. 2003). Because the oath documents existed at the time of the petitioner's sentencing, he must explain why he did not attempt to procure them before 2009. See Adams , 272 F.Supp.2d at 274 ("In the absence of a showing of good cause, courts will reject assertions that evidence is newly discovered' if that evidence existed prior to the time a petitioner's underlying conviction became final."). The relevant inquiry is not when the petitioner actually discovered the facts, but when he could have discovered them with due diligence. See Wims v. United States , 225 F.3d 186, 190 (2d Cir. 2000); Adams , 272 F.Supp.2d at 274 (collecting cases).
The petitioner does not explain what steps he took prior to 2009 to obtain the oath of office documents or why he could not have obtained the documents earlier with due diligence. Indeed, when the petitioner sought the documents under the Freedom of Information Law, the correspondence indicates he received the documents promptly, with the cover letter dated March 6, 2009. In any event, even if the statute of limitations began to run in March, 2009, when the petitioner obtained the oath documents, his claims would still be time-barred ...