MEMORANDUM AND ORDER

LEONARD SAND, Senior District Judge[fn*] [fn*] Sitting by Designation.

Wilfred Letlow ("Petitioner") brings this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the grounds of ineffective assistance of appellate counsel.

I. Background

The Court assumes familiarity with its Memorandum and Order of October 31, 2002 (filed on November 8, 2002), and sets forth here only a brief summary of the facts and procedural history of this petition. On November 24, 1997, Letlow was convicted of manslaughter for the stabbing death of his wife and sentenced to eight and one-third to twenty five years. On December 4, 1997, Letlow filed a notice of appeal, but after oral and written communications with his attorneys Ronald L. Kuby and Daniel M. Perez he decided to withdraw his appeal. The appeal was officially withdrawn on April 30, 1998. On May 26, 1998, Letlow wrote a letter to Kuby stating that he was having second thoughts about having withdrawn his appeal. Having received no response, Letlow wrote a second letter to Kuby on November 29, 1999, but again received no response. On January 21, 2000, Petitioner moved to reinstate his appeal nunc pro tunc on the ground that the withdrawal had been based on faulty and conflicted legal advice. The Appellate Division denied the motion on March 3, 2000. Letlow sought leave to appeal to the Court of Appeals, but his application was dismissed as non-appealable. On June 4, 2000, Letlow filed for a writ of error coram nobis, but the application was dismissed on the ground that coram nobis was not available where no appeal had been decided in the first place. Letlow signed the instant habeas corpus petition on December 26, 2000, and it was filed in this Court on January 5, 2001.

On October 31, 2002, after an initial round of briefing by the parties on the substantive ineffective assistance of counsel claim, this Court asked the parties to address whether Letlow's habeas corpus petition was barred by the period of limitation in 28 U.S.C. § 2244, and whether his claim was properly exhausted. Because the Court raised the limitations issue sua sponte, it gave Petitioner notice and an opportunity to respond before dismissing his opinion on that basis.See Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000).

II. Period of Limitation

"The Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA') had among its goals `to prevent undue delays in federal habeas review.'"Wims v. United States, 225 F.3d 186, 189 (2d Cir. 2000) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam)). Accordingly, the AEDPA mandates that petitions brought under 28 U.S.C. § 2254 are subject to a one-year period of limitation. The statute provides:

(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, 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.

(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.

Although the statute provides four possible dates from which the period of limitation can run, Letlow's petition is time-barred no matter which date one chooses. First, there is no suggestion that §§ 2244(d)(1)(B) or (C) are applicable here. Under § 2244(d)(1)(A), the relevant date is when Letlow's judgment of conviction became final "by the conclusion of direct review or the expiration of the time for seeking such review." Direct review of Letlow's conviction concluded when his appeal was withdrawn on April 30, 1998; even if one treats the withdrawal order as appealable, and adds an additional thirty days during which Letlow could have sought leave to appeal to the Court of Appeals, his conviction was final by May 30, 1998.

Under § 2244(d)(1)(D), the relevant date "on which the factual predicate . . . could have been discovered through the exercise of due diligence" must fall sometime before May 30, 1998.

The theory behind Letlow's ineffective assistance of appellate counsel claim is that his attorneys, upon realizing that they were unlikely to be paid for further work, erroneously convinced Letlow that an appeal would be pointless or counterproductive. "The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered" the factual predicate for his claim. Wims, 225 F.3d at 190. The primary evidence that Letlow offers in support of his theory is a meeting that took place on or about April 2, 1998, at which his sister informed Kuby or Perez that she had no more money to pay them. Not only did this meeting take place before Letlow withdrew his appeal on April 30, but Letlow apparently met with his sister in person after the meeting and before he withdrew the appeal. The factual predicate of Letlow's claim was therefore available to him as early as April 1998. Indeed, Letlow certainly harbored doubts about his attorneys' strategy when he wrote his letter to Kuby in May 1998. Lastly, Letlow does not identify any new and vital information that came to light in the intervening period to support his habeas claim. See Sorce v. Artuz, 73 F. Supp.2d 292, 294-95 (E.D.N.Y. 1999) ("Section 2244(d)(1)(D), while allowing the statute to run anew upon the discovery of new evidence, `does not convey a statutory right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim.'") (quotingLucidore v. New York State Div. of Parole, 1999 U.S. Dist. LEXIS 11788, *5 (S.D.N.Y. Aug. 3, 1999)) (internal quotation marks and alterations omitted). There is thus no basis for choosing any date under § 2244(d)(1)(D) that falls after the date chosen under § 2244(d)(1)(A).

Given that the latest date on which the § 2244(d) period of limitation began to run was May 30, 1998, no amount of statutory tolling pursuant to § 2244(d)(2) could make a dispositive difference.See Smith, 208 F.3d at 17 (holding that the tolling provision "excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run"). Letlow did not institute any of his state relief applications until January 21, 2000, by which time over nineteen months had passed and his habeas petition was already time-barred. The Court therefore need not address which of the mechanisms invoked by Letlow constituted properly filed applications for the purposes of § 2244(d)(2). See, e.g., Bethea v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002) (doubting that a motion to extend the time to appeal or to file a late notice of appeal tolls the AEDPA period of limitation); Raynor v. Dufrain, 28 F. Supp.2d 896, 899 (S.D.N.Y. 1998) (finding that the period of limitation is not tolled during the appeal of a non-appealable motion).

Finally, although Petitioner does not claim that the limitation period should be equitably tolled, the Court notes that it sees no basis for such tolling. "Equitable tolling applies only in the rare and exceptional circumstance." Smith, 208 F.3d at 17 (citation and alteration omitted). "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll."Id. See also, e.g., Smaldone v. Senkowski, 2000 U.S. Dist LEXIS 10928, *15 (E.D.N.Y. Aug. 3, 2000), aff'd, 273 F.3d 133 (2d Cir. 2001) (collecting cases which have "rebuffed claims for equitable tolling raised by habeas petitioners based on attorney error"). Petitioner's invocation of "attorney malfeasance" as the basis for the withdrawn appeal does not itself reveal any exceptional circumstance that prevented him from filing for habeas relief or explain what reasonable diligence he displayed during the time period.

Letlow suggests that the AEDPA does not apply to his case because he is challenging his sentence rather than his conviction, but the AEDPA, including its one-year statute of limitations, applies by its own terms to any "application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1).

III. Conclusion

Because the Court finds that Letlow's petition is time-barred, it does not address the question of exhaustion. Petitioner's petition for habeas corpus is hereby DENIED. Respondent's motion to dismiss the petition is hereby GRANTED.

Because petitioner has failed to make a substantial showing that he was denied a constitutional right, this court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 123 S.Ct. 1029, 1034 (2003) (holding that a substantial showing exists when "jurists of reason could disagree with the district court's resolution" or "the issues presented are adequate to deserve encouragement to proceed further"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.

SO ORDERED.