Duat A. Duamutef, a prisoner at the Arthur Kill Correctional Facility, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent now moves to dismiss the petition as time-barred. For the following reasons, the motion should be granted.

I. STATEMENT OF FACTS

A. Trial

On August 27, 1982, petitioner Duat A. Duamutef, also known by the names Beresford Duncan, Peter Savitch and Abdul Aziz Aliym, was arrested in connection with the August 18, 1982, shooting death of Dennis Sadler. See Memorandum of Law, dated February 15, 2001 ("Duamutef Mem.") at 3. On September 17, 1982, a Bronx County grand jury returned an indictment against Duamutef, under his alias Beresford Duncan, charging him with Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Use of a Firearm in the Second Degree. See Affidavit In Support of Respondent's Motion to Dismiss, filed October 12, 2001 ("Resp. Aff.") at ¶ 3.

At trial, police officers Thomas Morris and Daniel Mullins testified that after they responded to the shooting incident at 1295 Walton Avenue in the Bronx, Sadler lay on the street mortally wounded and told them "Beres is who shot me." (Mullins: Tr. 97, 100; accord Morris: Tr. 88, 90). Preston Hallman testified that on the night of the shooting he was talking to Sadler for ten minutes, when Sadler went over to speak to Duamutef. (Hallman: Tr. 42-44, 51-53). Five minutes later, with his back to Duamutef and Sadler, Hallman heard six gunshots. (Hallman: Tr. 44, 52-55, 76). When Hallman turned around, he saw Sadler fall to the ground and Duamutef, whom he had known for one and a half years, run away carrying a silver revolver. (Hallman: Tr. 41, 44, 56, 57, 73, 74). In addition, the victim's father-in-law, Erving Wallace, testified that Duamutef and Sadler were friends. (Wallace: Tr. 83-84). On February 15, 1984, following a jury trial, judgment was rendered in the Bronx County Supreme Court convicting Duamutef of Murder in the Second Degree (New York Penal Law § 125.25) and sentencing him to an indeterminate term of fifteen years to life. See Resp. Aff. at ¶ 4.

References to Tr. ___ refer to the minutes of Duamutef's trial, which began on January 20, 1984.

The record contains two different first names for Wallace. In the trial transcripts, he is called "Erving" Wallace. In the New York Supreme Court's January 26, 1996 denial of Duamutef's section 440 motion and in his letter dated September 20, 1999, to the Bronx County District Attorney's office, he is called "Joseph" Wallace.

B. The Direct Appeal

On appeal from his conviction, Duamutef, through counsel, argued that Sadler's dying declaration naming Duamutef as his assailant was not properly admitted into evidence and that Duamutef was not afforded his right to a speedy trial. See Brief for Defendant-Appellant, dated October 16, 1986, reproduced as Resp. Aff., Ex. 1. On February 17, 1987, the Appellate Division, First Department, unanimously affirmed Duamutef's conviction without opinion. See People v. Duncan, 127 A.D.2d 1013 (1st Dep't 1987). Duamutef did not seek leave to appeal the Appellate Division's ruling to the Court of Appeals. See Resp. Aff. at ¶ 7.

C. Duamutef's First Six Motions Brought Under Section 440.10

On September 18, 1984, Duamutef filed a motion, pursuant to New York Criminal Procedure Law (CPL) § 440.10 (a "section 440 motion"), to vacate his conviction on the ground that the prosecutor presented false evidence at trial. By order dated October 18, 1984, the New York Supreme Court denied the motion. See id. at ¶ 8; Order, reproduced as Resp. Aff., Ex. 3.

On June 6, 1986, Duamutef filed a second section 440 motion, asserting various ineffective assistance of counsel claims. See Resp. Aff. at ¶ 9. On July 14, 1986, the New York Supreme Court denied this motion on the ground that Duamutef should have raised all of the claims in his prior section 440 motion and all but one of these claims on direct appeal. The court denied Duamutef's remaining claim because it was "based solely on his conclusory allegation that the attorney's preparation was not to the defendant's liking." See Order, reproduced as Resp. Aff., Ex. 4.

On June 11, 1987, Duamutef filed a third section 440 motion, alleging that there had been prosecutorial misconduct at his trial, that he had received ineffective assistance of counsel and that he should have been assisted by an interpreter at trial. See Resp. Aff at ¶ 10. On July 27, 1987, the Supreme Court denied the entire motion because the claims were not raised in his first section 440 motion. See Order, reproduced as Resp. Aff., Ex. 5. In an alternative holding, it denied the prosecutorial misconduct claim because it was not based on sworn allegations of fact and denied the interpreter claim because it should have been raised at trial. See id.

On April 10, 1988, Duamutef filed a fourth section 440 motion, alleging, among other things, that witness testimony at trial was misleading, prejudicial and conflicted with police officer testimony. See Resp. Aff. at ¶ 11. On April 20, 1988, the New York Supreme Court denied the motion, noting that it was "essentially the same motion" that Duamutef had "repeatedly and unsuccessfully made since his conviction." See Order, reproduced as Resp. Aff, Ex. 6.

On January 29, 1991, Duamutef filed a fifth section 440 motion. This time he alleged that the prosecution paid Hallman $1,000 and promised him a reduced sentence on pending unrelated charges to testify falsely that Duamutef shot Sadler. See Resp. Aff. at ¶ 12. Duamutef attached Hallman's affidavit to his motion, which attested to this allegation and also asserted that the real shooter was Dolphy McPherson (who had since died). See id. Duamutef also attached the affidavit of an Alvin Power who claimed to have witnessed Dolphy McPherson (not Duamutef) shoot Sadler on the night in question. See id. On August 19, 1991, the New York Supreme Court denied the motion, noting that "Hallman and Power made these revelations when [Duamutef] encountered each of them in prison" and "[t]he only type of evidence less reliable than a recantation is a recantation made for the first time when the recanting witness meets the defendant in prison." See Order, reproduced as Resp. Aff., Ex. 7. The court also stated that none of the elements for a "newly discovered evidence claim" was present and that "[m]ost significantly the 'new evidence' could not have affected the verdict, which rested largely on the excited utterances of the dying victim who named [Duamutef] as his killer." See id.

On September 29, 1995, Duamutef filed a sixth section 440 motion alleging that the prosecutor used evidence and testimony against Duamutef that he knew was fraudulent. See Resp. Aff. at ¶ 13. Duamutef supported his motion with an affidavit of Sadler's father-in-law, Wallace, who recanted his trial testimony, and for the first time stated that Sadler told him that "Dolphy, Beres' friend shot him." See id. Wallace also claimed that two detectives came to his store stating that the FBI was investigating Duamutef because he was part of the New African Liberation Movement and that, if Wallace helped them "get" Duamutef, they would continue to let Wallace run his marijuana and cocaine business. See id. On January 26, 1996, the New York Supreme Court denied this motion under CPL § 440.10(c), noting that even if the allegations were true, it must still deny the motion because Wallace's affidavit was a mere recantation of his trial testimony, the evidence could have been discovered prior to trial, and the evidence would not change the result of the trial. See Decision and Order, dated January 26, 1996 (reproduced as Resp. Aff, Ex. 8) at 3-4. It also denied the motion in the alternative because the claims had previously been the subject of a section 440 motion. See id. at 6. Duamutef sought leave to appeal this decision to the Appellate Division, which was denied on April 1, 1997. See, e.g., Petitioner's Affirmation, filed April 12, 2001 ("Pet. Aff.") at 2.

C. Duamutef's FOIL Requests

Some time prior to February 15, 1994, Duamutef submitted a request to the Bronx County District Attorney's office, pursuant to New York's Freedom of Information Law, Public Officers Law § 87 ("FOIL") seeking thirty-nine different types of documents related to his arrest and prosecution under indictment number 3281/82. See Letter from Assistant District Attorney ("ADA") Lisa Cuevas to Duamutef, dated February 15, 1994, reproduced as Resp. Aff., Ex. 9. ADA Cuevas responded by letter dated February 15, 1994, granting in part and denying in part Duamutef's requests. Among his numerous requests was one for "all in and out of court statements made by prosecution witnesses who were interviewed concerning the instant case whether they testified at [his] trial or not." See id. at ¶ 14. Cuevas responded to this request by stating that the file contained three witness interviews totaling three pages, copies of which Duamutef could obtain if he paid the requisite fee. Additionally, she informed Duamutef that he could appeal the portion of her letter denying certain requests. On March 7, 1994, Duamutef appealed the requests that had been denied. See Letter from Duamutef to ADA Anthony J. Girese, dated March 7, 1994, reproduced as Resp. Aff., Ex. 10. On April 5, 1994, ADA Girese affirmed Cuevas' denials. See Letter from Girese to Duamutef, dated April 5, 1994, reproduced as Resp. Aff., Ex. 11. The respondent claims not to know whether Duamutef paid the requisite fee to receive copies of the approved documents or whether the District Attorney's office ever sent copies of these documents to him. See Resp. Aff. at ¶ 14. Duamutef himself makes no allegations regarding the 1994 FOIL request.

While the District Attorney's office no longer has a copy of the request, it does have a copy of the letter sent in response to the request. See Resp. Aff., Ex. 9.

On September 20, 1999, Duamutef made a second FOIL request to the Bronx County District Attorney's office. See Letter dated September 20, 1999, reproduced as Resp. Aff., Ex. 12. This time, Duamutef sought a copy of the contents of all interviews vouchered under number B232328 by the 44th precinct on August 31, 1982, including the interview of Wallace. See id.

In February 2000, ADA Katherine Adams Wilson located Duamutef's trial folder and discovered one document that appeared responsive to Duamutef's request: a copy of a "Complaint Follow-Up," which indicated that the contents of Wallace's interview were vouchered at the 44th precinct and not in the District Attorney's office files. See Resp. Aff., Ex. 13; Duamutef Mem., Exhibit I. Wilson sent Duamutef a copy of this document. See Resp. Aff. at ¶ 17; Duamutef Mem. at 13. After receiving the copy, Duamutef noticed the name of Detective Robbins on the bottom of the document. See Duamutef Mem. at 13.

On March 20, 2000, Duamutef made a third FOIL request, by letter to ADA Wilson, seeking a copy of 1) all statements, notes, interviews, witness lists and depositions recorded by Detective Robbins in connection with the Sadler shooting on August 18, 1982; 2) all statements taken at the crime scene by officers Morris and Mullins on August 18, 1982; 3) all photographs taken of the crime scene by law enforcement personnel on August 18, 1982; and 4) the ballistic reports. See Letter, dated March 20, 2000, reproduced as Resp. Aff., Ex. 14. On March 27, 2000, Duamutef sent another letter to ADA Wilson requesting the contents of the police interview of Wallace, which Duamutef acknowledged had been vouchered at the 44th precinct. See Letter, dated March 27, 2000, reproduced as Resp. Aff., Ex. 15.

On April 19, 2000, ADA Wilson wrote to Duamutef in response to his two letters of March 2000. See Letter, reproduced as Resp. Aff., Ex. 16. In this letter, Wilson informed Duamutef that the District Attorney's office did not have any of the documents Duamutef requested on March 20, 2000. See id. She also stated that because the contents of the Wallace interview were vouchered at the 44th precinct, the District Attorney's office did not possess them and could not provide them. See id. She advised Duamutef to make his request to the 44th precinct directly. See id. Finally, she advised him of his right to appeal the letter, see id., which he did not. See Resp. Aff. at ¶ 20. Duamutef states that the 44th precinct "refused to answer any of [his] FOIL requests." See Reply to Respondent's Motion to Dismiss, dated October 24, 2001, at 2.

E. Other Filings by Duamutef

Duamutef claims to have filed a federal habeas petition in the Southern District of New York on July 18, 1989. See Duamutef Mem. at 11. According to Duamutef, the Court dismissed this petition without prejudice because Duamutef failed to exhaust one of his claims in the state courts. See id. While Duamutef provides no documents regarding this filing, the filing of such a petition would not affect the disposition of the pending motion. Accordingly, the Court will assume that Duamutef's statements concerning this petition are accurate.

In addition, although not mentioned by either party, the Appellate Division Reports indicate that Duamutef also filed a state habeas petition in Dutchess County, which was denied by the New York Supreme Court. The Appellate Division, Second Department, affirmed the Supreme Court's decision on January 30, 1995, stating that "[a] habeas corpus proceeding is not proper in this case because even if the petitioner's claims were meritorious, the only remedy would be a new trial, not immediate release from prison." See People ex rel. Duamutef v. Dalsheim, 211 A.D.2d 835 (2d Dep't 1995). Duamutef apparently did not seek review of this decision in the Court of Appeals.

F. Duamutef's May 2000 Section 440 Motion

On May 8, 2000, Duamutef filed his seventh and most recent section 440 motion, claiming prosecutorial misconduct, the use of false evidence, perjured testimony and ineffective assistance of counsel. See Affidavit in Support of Motion to Vacate the Judgment of Conviction Pursuant to CPL 440.10, reproduced as Resp. Aff., Ex. 17. He also claimed that the one page document with Detective Robbins' name on the bottom together with the lack of responsive documents to his March 2000 FOIL requests collectively constituted newly discovered evidence that showed that the police officers did not speak to witnesses on the night of the shooting and did not hear Sadler accuse Duamutef of shooting him. See id. at 12-15. He alleged he had been framed by the government, which wanted to "neutralize" Duamutef "for his political belief as a member of the New African Liberation Movement — a political movement that's designed to address the socio-political and economic needs of the black community." See id. at 14. On June 28, 2000, the District Attorney's office submitted its response in opposition to Duamutef's latest section 440 motion. See Resp. Aff., Ex. 19. By order dated June 29, 2000, the New York Supreme Court denied the motion, without opinion, citing the District Attorney's opposition papers. See Order, reproduced as Resp. Aff, Ex. 18.

On July 13, 2000, Duamutef made an application for leave to appeal the Supreme Court's denial of his seventh section 440 motion to the Appellate Division, First Department. See Resp. Aff. at ¶ 24. On September 27, 2000, the Appellate Division denied this application. See Certificate Denying Leave, reproduced as Resp. Aff., Ex. 21. Duamutef then filed an application to the Court of Appeals for a certificate to appeal, which was denied on December 28, 2000. See Duamutef Mem. at 14.

G. The Instant Petition

On February 15, 2001, Duamutef executed the present habeas petition, which was received by the Court's Pro Se Office on February 26, 2001. See Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody ("Petition"), filed March 26, 2001. In this petition, Duamutef claims that 1) the prosecution knowingly used false evidence and testimony to procure Duamutef's conviction, 2) he was not found guilty beyond a reasonable doubt 3) he received ineffective assistance of counsel, and 4) he was denied his right to a speedy trial. See id. at fourth page (unnumbered).

On March 26, 2001, Chief District Judge Michael B. Mukasey ordered Duamutef to show cause why his habeas petition was not barred by the one year limitation period set forth in 28 U.S.C. § 2244(d). On April 12, 2001, Duamutef filed an affirmation arguing that the petition was timely because "the facts upon which the petition is based could not have been discovered by the petitioner even with the exercise of due diligence, as the District Attorney's Office [has] withheld the evidence from the petitioner." Pet. Aff. at 1. He claimed that through the responses to his March 2000 FOIL requests that he received on April 3, 2000, he discovered "that there [is] no evidence on file of [Detective Robbins] securing the eyewitness in the case or interviewing any witnesses at the crime scene, contrary to the People's case." Id.

The respondent has now moved to dismiss the present petition because it is barred by the one year limitation period for habeas corpus petitions under 28 U.S.C. § 2244(d). Duamutef has opposed the motion.

II. DISCUSSION

A. The AEDPA Limitation Period

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitation period on habeas corpus applications by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The one year limitation period runs 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.

The only subsections that either party argues are relevant to this case are (A) and (D). Each is discussed in turn.

1. Timeliness Under 2244(d)(1)(A)

Section 2244(d)(1)(A) provides for the AEDPA's one year limitation period to begin on the date the petitioner's state conviction becomes final. Duamutef's conviction became final in 1987 when the Appellate Division affirmed his conviction and he did not seek review in the Court of Appeals, thus preventing him from seeking review in the Supreme Court. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.) (conviction final for 2244(d)(1)(A) purposes upon completion of direct state appellate review and either the completion of United States Supreme Court certiorari proceedings or the expiration of time to seek review via such proceedings), cert. denied, 122 S.Ct. 279 (2001). Habeas petitioners whose convictions became final prior to the effective date of the AEDPA, April 24, 1996, however, are afforded a one-year grace period to 11 file following that date, or until April 24, 1997. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Therefore, under this provision, Duamutef had until April 24, 1997, to file a federal habeas petition. Duamutef filed his petition no earlier than February 20, 2001, almost four years after April 24, 1997. Therefore, unless Duamutef can benefit from the tolling provision contained in 28 U.S.C. § 2244(d)(2), his petition is untimely under the statute.

Duamutef's petition is dated February 15, 2001, was received by the Court's Pro Se Office on February 26, 2001, and was filed with the Clerk on March 26, 2001. Duamutef asserts without contradiction that he delivered the petition to prison authorities for mailing on February 20, 2001, see Petition at last page (unnumbered), and thus the petition is deemed filed on that date, see Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001).

Section 2244(d)(2) provides that the limitation period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review." This tolling provision applies to the one year grace period established in Ross. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). As noted, Duamutef filed at least seven section 440 motions, three FOIL requests, one federal habeas petition, and one state habeas petition. These filings, however, did not sufficiently toll the grace period. The state habeas petition that was denied by the Appellate Division in January 1995 did not toll the grace period at all because it was filed and decided before the grace period began. See, e.g., Coleman v. Miller, 2000 WL 1843288, at *6 (E.D.N.Y. Oct. 16, 2000) (collateral proceedings concluded before April 24, 1996, do not add additional time to grace period). The 1989 federal habeas petition did not toll the grace period because federal petitions are not considered "properly filed applications for state post-conviction or other collateral review" under 2244(d)(2). See Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001).

Duamutef's 1994, 1999, and 2000 FOIL requests are not "applications for state post-conviction or other collateral review" under § 2244(d)(2). See, e.g., Bonilla v. Ricks, 2001 WL 253605, at *3 (S.D.N.Y. March 14, 2001) (FOIL requests can not toll § 2244(d)(1) limitation period); Sorce v. Artuz, 73 F. Supp.2d 292, 297-98 (E.D.N.Y. 1999) (same); see also Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (Article 78 proceeding seeking material that might aid in challenging conviction not an "application for state post conviction or other collateral review" under § 2244(d)(2)).

Section 440 motions, on the other hand, can serve to toll the grace period. See, e.g. Bennett, 199 F.3d at 123 (tolling grace period for pending section 440 motion). Duamutef filed seven of these motions: one each in 1984, 1986, 1987, 1988, 1991, 1995, and 2000. Assuming that such petitions remain "pending" for 2244(d)(2) tolling purposes until "further appellate review is unavailable," only the 1995 section 440 motion is of any relevance because only that motion was "pending" at any point during the Ross grace period. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (properly filed applications for collateral review toll but do not reset the limitation period), cert. denied, 531 U.S. 840 (2000); Coleman, 2000 WL 1843288, at *6 ("Section 2244(d)(2) will toll the grace period for collateral proceedings pending during that one year, but it does not add additional time for collateral proceedings that concluded before April 24, 1996 or that were not commenced until after April 24, 1997.").

The Bennett court stated that "a state court petition is 'pending' [under 2244(d)(2)] from the time it is first filed until finally disposed of and further appellate review is unavailable. . . ." 199 F.3d at 120. This statement has been characterized by subsequent court decisions as both dictum and holding and thus it is not clear if the limitation period is tolled from the time a state petition is filed until appellate review is unavailable or only during the periods that the motion was actually awaiting decision by each level of the relevant state court. Compare Hodge v. Greiner, 269 F.3d at 107 n. 1 (characterizing statement as dictum), with Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (characterizing statement as holding). Because the result under either approach is the same in this case, the Court assumes without deciding that the Bennett articulation, which is more favorable to Duamutef, applies.

The 1995 section 440 motion was filed on September 29, 1995, and denied by the New York Supreme Court on January 26, 1996. The Appellate Division denied leave to appeal the trial court's decision on April 1, 1997. Duamutef then had thirty days to seek leave to appeal to the Court of Appeals, see Criminal Procedure Law § 460.10(5)(a), which he did not. Thus, appellate review for this petition became unavailable thirty days after the Appellate Division's ruling, or on May 1, 1997. In other words, the 1995 motion was "pending" from September 29, 1995, to May 1, 1997, and the grace period was tolled from its commencement, on April 24, 1996, until May 1, 1997. Consequently, the one year limitations period expired on May 1, 1998, and the present petition — filed in February 2001 — is untimely.

2. Timeliness under 2244(d)(1)(D)

Section 2244(d)(1)(D) provides an alternate start date for the one-year limitation period: "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Duamutef argues that his petition is timely because "the facts upon which the petition is based could not have been discovered by the petitioner even with the exercise of due diligence . . . ." Pet. Aff. at 1. Although he does not explicitly cite section 2244(d)(1)(D), he apparently relies on this section to calculate the time for filing his petition.

For Duamutef's petition to be timely, he must be able to show that there is some new "factual predicate" to his claim that only recently could have been discovered. His only basis for asserting there is a new factual predicate, however, consists of his combining two recent events to conclude that "the petitioner was framed for the crime." Pet. Aff. at 1. The two recent events are (1) the mailing to him on March 13, 2000, of a photocopy of a police report regarding the interview with Wallace, which contains Detective Robbins' name on the bottom corner and (2) the District Attorney's letter dated April 19, 2000, alerting Duamutef to the fact that the District Attorney's files did not contain records of any interviews conducted by Robbins. Pet. Aff. at 1; accord Duamutef Mem. at 13. Duamutef argues that the fact that there is no evidence in the District Attorney's file of Detective Robbins securing eyewitnesses was "contrary to the People's case." Pet. Aff. at 1. Although Duamutef does not state the relevance of Detective Robbins' activities to his claims, there were some references at trial to Detective Robbins being at the scene of the investigation and of potentially having conducted some interviews of witnesses, see Tr. 87, 92, 97, 101, although Detective Robbins did not himself testify at trial. Thus, Duamutef apparently argues that the absence of any records from the District Attorney's files shows that Detective Robbins in fact did not interview anybody.

Duamutef's argument is without merit for two reasons. First, the factual predicate that apparently underlies Duamutef's claim — that the absence of written documents in the District Attorneys files from Detective Robbins shows that Detective Robbins never conducted any interviews — is itself logically flawed. It is entirely possible that Detective Robbins never made a record of any attempts to interview witnesses; that the 44th precinct and not the District Attorney's Office kept any written records of interviews; or that any records of interviews made in 1982 were misplaced or discarded in the subsequent years. Because the facts Duamutef cites do not actually relate to the claims he makes in his petition, there is no factual predicate that Duamutef may rely upon to come within the limitation period of 28 U.S.C. § 2244(d)(1)(D).

Second, Duamutef's argument must be rejected also because — even accepting the validity of his factual predicate — the factual predicate is one that could have been discovered far earlier through the exercise of due diligence. Duamutef has not even attempted to show what efforts could have been made (or were in fact made) by his trial counsel at the time of his trial to obtain written statements taken by Detective Robbins or to determine that they did not exist. More significantly, Duamutef does not explain why he did not himself attempt to obtain such statements far earlier than he did. The New York State FOIL statute, New York Public Officers Law § 87, was enacted in 1974 and thus was available to Duamutef since the time of his conviction in 1984 to obtain the information — or more precisely, a statement regarding the lack of information — that he ultimately obtained in April 2000. There is no explanation for Duamutef having waited 16 years (until his 2000 FOIL request) to obtain this information. That Duamutef did not think to ask regarding the existence of interviews by Detective Robbins is irrelevant as "[e]vidence in existence at an earlier date, though perhaps unknown to a petitioner, cannot later be described as newly discovered." Hector v. Greiner, 2000 WL 1240010, at *1 (E.D.N.Y. Aug. 29, 2000) (citations omitted). That Duamutef was reminded of Detective Robbins' existence as a result of the response to his 1999 FOIL request is irrelevant because Detective Robbins' involvement in the investigation was the subject of testimony at Duamutef's trial. See Tr. 87, 92, 97, 101.

Indeed, the record in this case shows that Duamutef actually knew in 1994 of the absence of statements from Robbins or was on constructive notice that there were no such statements. Duamutef had made a FOIL request to the District Attorney's office for "all in court and out of court statements made by all prosecution witnesses who were interviewed concerning the instant 16 case." See Resp. Aff., Ex. 9 at ¶ 14. On February 15, 1994, ADA Cuevas responded that the entire trial folder contained only three witness statements, which would necessarily include any statements taken by Robbins if they existed. She also informed him that he could obtain copies of these statements. See id. The record does not show whether Duamutef ever sought to obtain those copies. But if he did, then he was on actual notice in 1994 that the District Attorney's Office did not have any witness statements taken by Robbins. Even if he did not seek to obtain these statements, he still knew from Cuevas' letter what he could do to obtain those statements. In such case, he certainly did not act with "due diligence" to establish the existence or absence of such statements. When evidence is newly obtained, but could have been obtained earlier, the date when the evidence was actually obtained has no effect on the AEDPA limitation period. See Sorce v. Artuz, 73 F. Supp.2d at 298.

Thus, the factual predicate for Duamutef's claim could have been discovered many years earlier than April 2000. As the predicate could have been discovered long before the Ross grace period, Duamutef's attempt to invoke § 2244(d)(1)(D) to provide a later starting date for the limitation period fails.

B. Equitable Tolling

Because the one-year deadline for filing a section 2254 petition is a statute of limitations and not a jurisdictional bar, equitable tolling is available. Smith v. McGinnis, 208 F.3d at 17. Duamutef contends that he should be allowed to proceed with his claims "[i]n the interest of justice," Pet. Aff. at 3, perhaps indicating that he seeks equitable tolling. To merit equitable tolling of the AEDPA's one-year limitation period, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17. In 17 addition, the petitioner seeking tolling must "have acted with reasonable diligence throughout the period he seeks to toll." Id. Equitable tolling may only be applied in "rare and exceptional circumstances." Id. (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 528 U.S. 1007 (1999)); accord Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).

Equitable tolling is not warranted in this case. Duamutef has failed to even allege any set of facts that could be considered "extraordinary circumstances" that prevented him from filing his petition on time. As already noted, any information obtained from his 2000 FOIL request either could have been obtained as a result of making a FOIL request years earlier or was in fact obtained as a result of Duamutef's 1994 FOIL request.

CONCLUSION

The petition should be dismissed as barred by the applicable statute of limitations.

Notice of Procedure for Filing of Objections to this Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley, III, at 500 Pearl Street, New York, New York 10007 and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Pauley. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).

Duamutef v. Mazzuca

Summary

Opinion

REPORT AND RECOMMENDATION

Duamutef v. Mazzuca

Duamutef v. Mazzuca

Case Details

Citations

Citing Cases

Duamutef v. Mazzuca

Summary

Opinion

REPORT AND RECOMMENDATION

Duamutef v. Mazzuca

Duamutef v. Mazzuca

Case Details

CitationsCopy Citation

Citing Cases

Citations