OPINION ORDER

KIMBA WOOD, District Judge

I. Background

This petition for writ of habeas corpus comes to the Court on remand for reconsideration by the Second Circuit. In an order dated May 21, 2002, this Court adopted a Report and Recommendation of Magistrate Judge Ronald L. Ellis, and dismissed the petition as time-barred under 28 U.S.C. § 2244(d). This decision was based on the Court's conclusion that 643 days of unexcludable time had passed from the date on which petitioner's state court conviction became final until the date on which he filed the present petition. This period of time exceeded the one year statute of limitations established by 28 U.S.C. § 2244(d). Following the submission of additional evidence by petitioner, this Court issued a second order, dated May 30, 2002, that assumed arguendo that petitioner was entitled to exclude 260 additional days from the aforementioned period. Because the total number of days still exceeded 365 (643 — 260 = 383), the Court concluded that petitioner's newly-submitted evidence did not alter the outcome of the May 21 Order.

Petitioner appealed the Court's decision to the United States Court of Appeals for the Second Circuit. The Second Circuit remanded the matter for reconsideration on December 19, 2002. Specifically, the Second Circuit stated that this Court should reconsider whether the two additional periods of time identified by petitioner are subject to statutory tolling. The Second Circuit also ordered this Court to consider whether some, or all, of the time during which petitioner's first habeas petition was pending before this Court should be equitably tolled. Finally, the Second Circuit ordered this Court to consider whether petitioner's habeas petition should be deemed to have been filed prior to the time this Court previously considered it filed.

II. Discussion

A. Statutory Tolling

Petitioner's state court conviction became final on May 30, 1985. Because this date is prior to the enactment date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), petitioner's statutory one-year period of limitation would begin to run, at the earliest, on April 25, 1996. However, as of that date, petitioner's first C.P.L. § 440.10 motion was pending in state court. During the time that this first § 440.10 motion was pending, petitioner filed a second § 440.10 motion. Petitioner's first § 440.10 motion was denied by the Appellate Division on May 1, 1997, and his motion for leave to appeal that decision was denied by the New York Court of Appeals on December 21, 1997. On December 23, 1997, the Appellate Division denied petitioner's application for leave to appeal the Bronx County Supreme Court's order denying his second § 440.10 motion.

Petitioner's period of limitation began to run, therefore, on December 23, 1997, which is the first date following the enactment of AEDPA on which no "properly filed application for State post-conviction or other collateral review" was pending. 28 U.S.C. § 2244(d)(2). Petitioner argues that the period of limitation should have begun to run only on March 4, 1998, which was the date on which the New York Court of Appeals denied petitioner leave to appeal the Appellate Division's denial of leave to appeal his second § 440.10 motion. As noted by the Second Circuit mandate in this case, petitioner's argument appears to be foreclosed by Hizbullahankhamon v. Walker, 255 F.3d 65, 71-72 (2d Cir. 2001), in which the Second Circuit held that the period between the Appellate Division's denial of acoram nobis application, and the Court of Appeals' denial of petitioner's application for leave to appeal the Appellate Division's denial, is not statutorily tolled. TheHizbullahankhamon court reasoned that the coram nobis application, once denied, ceased to be "pending" within the meaning of 28 U.S.C. § 2244(d)(2), and therefore ceased to toll the period of limitation. The court also noted that New York State law does not recognize an application for leave to appeal the denial of a coram nobis petition, and therefore the leave application itself was not "properly filed" within the meaning of § 2244(d)(2).

The Second Circuit's reasoning in Hizbullahankhamon also applies to applications for leave to appeal to the Court of Appeals an order by the Appellate Division denying leaving to appeal a denial of a § 440.10 motion. Given that petitioner was denied leave to appeal the Supreme Court's denial of the motion, not only was petitioner's second § 440.10 motion no longer "pending" during the period in which he was seeking leave to appeal to the Court of Appeals, but it was also not "properly filed." See Ramos v. Walker, 88 F. Supp.2d 233, 235-36 (S.D.N.Y. 2000) (stating that there is no provision under New York State law to appeal to the Court of Appeals an Appellate Division's decision denying leave to appeal an order denying a § 440.10 motion). Thus, the Court concludes that the time began to run in December 23, 1997.

Petitioner had no pending application for State post-conviction or collateral relief between December 23, 1997 and December 2, 1998, and thus the period of limitation was running during this time (344 days). On December 2, 1998, petitioner filed his first application for coram nobis. This application was ultimately denied on June 29, 1999, and the period of limitation was therefore tolled pursuant to the statute during this time. The period of limitation again began to run following the June 29 denial, and it continued to run until petitioner filed his second application for coram nobis on July 21, 1999 (22 days). The period of limitation was tolled from July 21, 1999, until the second application for coram nobis was denied, which was on March 16, 2000. From March 16, 2000, until April 2, 2000, the period of limitation was again running (17 days). On April 2, 2000, petitioner filed his third application for coram nobis; this application was denied by the Appellate Division on September 21, 2000. It is the period during which this, third application was pending that the Court did not take into consideration in its May 21, 2002 order, but which the Court assumed, arguendo, was tolled in its May 30, 2002 order. Upon reviewing the record on appeal, the Court concludes that the period of limitation was tolled during the pendency of this third application for coram nobis. From the date the third application was denied, September 21, 2000, until October 16, 2000, the period of limitation was again running (25 days). On October 16, 2000, petitioner filed his fourth, and final, application for coram nobis. This application was denied by the Appellate Division on May 8, 2001. The period of limitation began to run again as of May 8, 2001, and an until petitioner filed this petition.

In this Court's prior orders, the Court considered this habeas petition as having been filed on July 10, 2001, which was the date on which the petition was docketed. Having reviewed the record, the Court concludes that this was an error. According to a stamp on the petition, the Pro Se Office of the Southern District of New York received the petition on June 1, 2001. Furthermore, the petition was signed, and sworn to, by petitioner on May 25, 2001. A pro se prisoner's papers are considered filed as of the date he hands the papers to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). Absent evidence to the contrary, the Court assumes that petitioner handed his petition to prison authorities for mailing on the date he signed the petition. See, e.g., Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (collecting cases). Cf. Cromwell v. Keane, No. 99-2156, 27 Fed. Appx. 13, 14, 2001 WL 1168546, *1 (2d Cir. Sept. 28, 2001) (citingRhodes). The Court thus treats the petition as having been filed on May 25, 2001; thus only 17 days ran between the denial of petitioner's final application for coram nobis and the filing of this petition.

Taking into consideration all of the time subject to statutory tolling, 425 days elapsed by the date when the present petition was filed. (344 + 22 + 17 + 25 + 17 = 425). Because this exceeds the one year period of limitation established by § 2244(d)(2), petitioner's petition would be untimely unless some period of the time not tolled pursuant to the statute could be tolled according to the principles of equity.

B. Equitable Tolling

1. Background

The Second Circuit mandate orders this Court to consider whether some, or all, of the time during which petitioner's initial petition was pending in this Court should be equitably tolled. Equitable tolling is appropriate if "extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). In order to be eligible for equitable tolling, the petitioner "must have acted with reasonable diligence throughout the period he seeks to toll.'" Id. (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).

In the Court's prior orders, the Court treated the original petition as having been filed on June 29, 1998 (i.e., the date on which it was docketed). However, the petition was signed, and sworn to, by petitioner on March 24, 1998; for the reasons discussed above, the Court deems the petition to have been filed on March 24, 1998. From that date until October 27, 1998, the date this Court "so ordered" petitioner's request to dismiss the petition without prejudice, 217 days passed.

At the time that the Court dismissed the original petition without prejudice, it was an open question whether the AEDPA period of limitation should be statutorily tolled during the pendency of a such a petition. The Court had no reason, at that time, to believe that AEDPA would be interpreted to prohibit statutory tolling during such a period. Indeed, several years after the Court dismissed the petition, the Second Circuit held that the AEDPA period of limitation was statutorily tolled throughout the pendency of such petitions. See, e.g., Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000). That decision was subsequently reversed by the Supreme Court in Duncan v. Walker, 533 U.S. at 181-82.

In light of the holding of Duncan, the Second Circuit inRodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002), directed courts to consider whether the period of limitation should be equitably tolled during the pendency of a previously filed habeas petition. Numerous courts have held that equitable tolling is warranted in such circumstances. See, e.g., Owens v. Commissioner of Corrections, No. 301CV1480 (SRU), 2003 WL 22208496, *5 (D. Conn. Sept. 4, 2003) (equitable tolling throughout pendency of previously filed habeas petition); De Jesus v. Miller, 215 F. Supp.2d 410, 412-13 (S.D.N.Y. 2002) (same); Butti v. Giambruno, No. 02 Civ. 3900 (DLC), 2002 WL 31885973, *3 (Dec. 26, 2002) (same); Dewindt v. Artuz, No. 97-CV-2138 (FB), 2002 WL 1034853, *4-5 (E.D.N.Y. May 23, 2002) (same); Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001). Those courts have recognized, as the Second Circuit noted in Rodriguez, that it often takes a great amount of time for a federal court to dismiss on procedural grounds a mixed petition (i.e., a petition containing both exhausted and unexhausted claims). Rodriguez, 303 F.3d at 439, n. 1. As a result, although a court may intend to dismiss a timely filed mixed petition without prejudice, the effect of that dismissal may be to render the dismissal with prejudice, if, as is likely, the petition was pending before the federal court for a substantial amount of time.

In Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001), the Second Circuit proposed an alternative to dismissing petitions without prejudice that would potentially eliminate this problem. The Second Circuit announced that in certain circumstances in which a mixed petition is timely filed, a district court may, in its discretion, stay that petition rather than dismiss it without prejudice. Doing so would demonstrate respect for the importance of permitting state courts to consider all issues in the first instance, while not jeopardizing the timeliness of petitioner's habeas petition by requiring him to file a potentially untimely subsequent petition. Id. at 380-81.

Where the petition is stayed pursuant to Zarvela, there is obviously no need to resort to equitable tolling as suggested byRodriguez. Thus, the issue of equitable tolling is most relevant to cases in which the decision to dismiss the petition without prejudice was made prior to the Second Circuit decision in Zarvela. In petitioner's case, neither Zarvela notDuncan had been decided at the time the Court dismissed the original petition without prejudice. Had those decisions been available at the time, this Court would undoubtedly have stayed petitioner's petition, as is the Court's current practice, rather than order that the petition be dismissed without prejudice. Because the Court did not do this, however, the Court must consider petitioner's eligibility for equitable tolling.

2. Extraordinary Circumstances

In this case, the Court finds that equitable tolling is appropriate for the entire period during which the original petition was pending in this Court. As other district courts have concluded, at the time this Court decided to dismiss the petition without prejudice, the Court could not have anticipated the Supreme Court's ruling in Duncan. Even if the Court had anticipated Duncan, the Court could not have anticipated the Second Circuit's decision in Zarvela, which would have provided this Court with authority to stay the petition, rather than dismiss it without prejudice, in order to avoid the risk of rendering any future habeas petition untimely. The Court concludes that extraordinary circumstances therefore exist.See, e.g., Owens, 2003 WL 22208496 at *4 (finding extraordinary circumstances from the fact that "[a]t the time the court dismissed the petitioner's first federal petition without prejudice for failure to exhaust remedies, neither the court nor the petitioner could have foreseen that four years later, the Supreme Court would issue its decision in Duncan . . . rendering the present petition untimely"); Jimenez, 166 F. Supp.2d at 772 ("the fact that Duncan transformed the dismissal of the [petitioner's first federal petition] without prejudice into a dismissal with prejudice by rendering the [present] petition time-barred presents extraordinary circumstances").

3. Reasonable Diligence

Petitioner has also exercised remarkable diligence in pursuing his claim. Petitioner exercised diligence during the period before he filed his initial habeas petition. He continued to exercise diligence during the pendency of that petition in this Court, and he remained diligent during the period after that petition was dismissed.

a. Prior to the Filing of the Petition

Prior to filing his original habeas petition in this Court, only 91 days had passed from the date on which the period of limitation began to run. Although the Court has rejected petitioner's argument that the period of limitation should be tolled until March 4, 1998, the date on which the New York Court of Appeals denied petitioner leave to appeal the Appellate Division's denial of leave to appeal his second § 440.10 motion, that date is relevant to a determination of petitioner's diligence. From petitioner's perspective, his § 440.10 motion had not been completely denied until March 4, and it was only 20 days later that he signed, and swore to, his original petition for writ of habeas corpus. Thus, from petitioner's perspective, he filed his original habeas petition less than three weeks after his second § 440.10 motion was finally denied.

b. During the Pendency of the Petition

Petitioner's diligence continued throughout the pendency of his original habeas petition. Following then-Chief Judge Griesa's order to show cause why the AEDPA statute of limitation did not bar the petition, petitioner quickly responded with the required affirmation. Furthermore, when the Court dismissed the petition without prejudice in order to permit petitioner to exhaust his state remedies, the Court did so on petitioner's own initiative.

c. Following the Dismissal of the Petition

Petitioner continued to act in a diligent manner following the dismissal of his original petition. Thirty six (36) days after the Court dismissed the petition, petitioner filed his first application for coram nobis in state court. From that point on, no longer than one month passed between any of his subsequent applications for collateral relief in state court. When the Appellate Division denied petitioner's fourth, and final, application for coram nobis on May 8, 2001, only seventeen (17) days passed until petitioner signed, and swore to, the present habeas petition.

4. Conclusion of Equitable Tolling

Two hundred seventeen (217) days passed from the date on which petitioner is deemed to have filed his original habeas petition (March 24, 1998) until the date on which the Court dismissed that petition without prejudice in order to allow the petitioner to fully exhaust his claims in state court (October 27, 1998). Based upon the Court's decision that this period should be equitably tolled, the Court does not count this period in considering the timeliness of the present petition.

C. Conclusion

The Court determined above that 425 days passed before the filing of the present petition, excluding all of the time required by § 2244(d)(2). The Court further concluded that 217 of those days should be equitably tolled. The Court therefore determines that 208 days of unexcludable time have passed from the date on which petitioner's state court conviction became final until the date on which he filed the present petition. (425 — 217 = 208). The present petition is therefore timely.

Because the government moved to dismiss the present petition on the grounds that it was untimely, the government has not yet responded to the petition on its merits. In a separate order signed today, this matter is referred back to Magistrate Judge Ronald L. Ellis. Judge Ellis shall notify the parties of when the government's response papers are due.

SO ORDERED.