OPINION AND ORDER

MICHAEL B. MUKASEY, U.S.D.J.

Keith Townes petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for murder in the second degree and criminal possession of a weapon in the third degree. Respondent Superintendent Lacy has moved to dismiss Townes' petition on statute of limitations grounds. Magistrate Judge James C. Francis IV recommended in a Report and Recommendation, dated July 5, 2000 (the "Report"), that respondent's motion be granted. Townes objects to the Report, challenging Magistrate Judge Francis' legal conclusions on the statute of limitations issue. For the reasons stated below, Magistrate Judge Francis' Report is accepted, and respondent's motion to dismiss the petition is granted.

I.

The relevant facts are set forth in the Report, and are summarized as follows. Townes was convicted on September 5, 1985 of murder in the second degree and criminal possession of a weapon in the third degree after a jury trial in New York State Supreme Court, New York County. (Report at 2) The conviction was affirmed by the Appellate Division, First Department on June 27, 1989. (Id.) A judge of the New York Court of Appeals denied Townes leave to appeal on December 7, 1989. (Id.) On September 10, 1993, Townes filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10, alleging that he was denied effective assistance of counsel. (Id.) This motion was denied on April 29, 1994. Townes moved for leave to appeal to the Appellate Division, but his application was denied on December 8, 1994. (Id. at 3)

In an application dated April 8, 1997, Townes petitioned this court for a writ of habeas corpus. (Id.) However, Townes requested permission to withdraw his petition on July 31, 1997 to pursue a CPL § 440.10 motion in state court based on newly discovered evidence. (Id.) On September 16, 1997, then-Magistrate Judge Naomi Buchwald issued a Report and Recommendation in which she recommended that Townes' request be granted and the petition be dismissed without prejudice. (Id.) Magistrate Judge Buchwald's Report and Recommendation also noted the following:

While we are prepared to accede to petitioner's request [to withdraw the petition], we feel obligated to note, because of the pro se status of the petitioner, that any habeas corpus petition, including the instant one, filed by plaintiff may be untimely under the AEDPA's one year period of limitation given that petitioner was convicted in 1985 and petitioner's direct state court review ended December 7, 1989.

(9/16/97 Rep. and Recomm. at 2) On December 24, 1997, I adopted Magistrate Judge Buchwald's recommendation and dismissed the petition without prejudice. On June 16, 1998, final judgment was entered and the case was closed. Townes, however, never filed a CPL § 440.10 motion. Instead, on June 6, 1999, he filed the instant habeas corpus petition, alleging (1) insufficient evidence to support his conviction; (2) that his conviction was obtained by the use of a coerced confession; (3) that certain evidence was improperly excluded from his trial; and (4) ineffective assistance of counsel. Respondent moved to dismiss the petition as time-barred under the one-year limitations provision contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). Magistrate Judge Francis recommended that respondent's motion be granted, and Townes now objects to this recommendation.

II.

The AEDPA does not specify a limitations period for prisoners whose convictions became final prior to its enactment. However, in Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998), the Second Circuit held that such prisoners had a one-year period in which to file their federal habeas corpus petitions, measured from April 24, 1996, the date the AEDPA became effective. Id. at 101.

Here, Townes' conviction became final before the AEDPA came into effect. Therefore, under Ross, Townes had until April 24, 1997 to file a federal habeas petition. As discussed, Townes filed his initial petition on April 8, 1997, 16 days before the limitations period expired. Accordingly, when Townes voluntarily dismissed his petition on June 16, 1998, he had 16 days within which to file a new petition. However, Townes did not refile until almost a year later, on June 6, 1999. His petition therefore is barred by the AEDPA's one-year limitations period unless all but 16 days of the period from June 16, 1998 to June 6, 1999 is tolled.

Townes appears to argue that my dismissal of his first federal habeas petition on June 16, 1998 somehow tolled the one-year limitations period. (Notice of Objection at 7) However, neither the language of the AEDPA nor the law in this Circuit supports this argument. To the contrary, when an action has been dismissed without prejudice, a subsequent court filing is vulnerable to a time bar. Johnson v. Nyack Hosp., 86 F.3d 8. 11 (2d Cir. 1996). In fact, Magistrate Judge Buchwald alerted Townes to the risk of a time bar at the time he requested a dismissal of his first federal habeas petition. (See 9/16/97 Rep. and Recomm. at 2)

Townes argues also that the one-year period was tolled during the time in which he sought material to support his CPL § 440.10 motion. (Notice of Objection at 2-3) However, the AEDPA's tolling provision tolls the limitations period only during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment." See 28 U.S.C. § 2244(d)(2); Townes never filed a § 440.10 motion following the dismissal of his first federal habeas petition on June 16, 1998. Accordingly, Townes cannot benefit from § 2244(d)(2)'s tolling provision.

Townes argues further that the one-year limitations period should be equitably tolled. Equitable tolling applies only in "rare and exceptional circumstances". Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). To benefit from equitable tolling, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time," and that he acted diligently throughout the period for which tolling is sought. Id.

Here, Townes argues that equitable tolling should apply because he was in administrative segregation from July 24, 1997 to June 11, 1998. (Notice of Objection at 6) However, this evidence, without more, is insufficient to warrant equitable tolling. Townes' administrative segregation ended on June 11, 1998. He did not file the instant petition until almost a year later, on June 6, 1999, and has offered no explanation for the delay. Accordingly, Townes has failed to show that he acted diligently after June 11, 1998 in attempting to file either his § 440.10 motion or the instant petition. Equitable tolling, therefore, is inapposite.

Townes contends also that his petition is timely under § 2244(d)(1)(d), which permits the filing of a petition within one year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." See 28 U.S.C. § 2244(d)(1)(d). As discussed, Townes' petition alleges (1) insufficient evidence to support his conviction; (2) that his conviction was obtained by the use of a coerced confession; (3) that certain evidence was improperly excluded from his trial; and (4) ineffective assistance of counsel. Townes has failed to present any new evidence bearing on these claims. In fact, the only new evidence Townes submits is the September 10, 1998 affidavit of Robert Daniels, in which Daniels asserts that Townes is innocent. However, Daniels' testimony does not relate to the claims raised in Townes' petition, nor does it constitute a factual predicate for a new constitutional claim. Moreover, evidence of Townes' innocence, standing alone, cannot serve as an independent basis for habeas relief. See Herrera v. Collins, 506 U.S. 390, 400 (1993). Accordingly, § 2244(d)(1)(d)'s one-year limitations provision is inapplicable to Townes' petition.

III.

The Supreme Court recently established the standard for determining whether a certificate of appealability should issue when the district court denies a habeas petition on procedural grounds. The Court held that "[w]here the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484(2000).

Here, jurists of reason would not find it debatable whether Townes' petition is time-barred Townes filed the instant petition almost a year after the AEDPA's one-year limitations period had expired Moreover, Townes has failed to make a substantial showing that either statutory or equitable tolling applies. Finally, because the Robert Daniels affidavit asserting Townes' innocence cannot serve as a factual predicate of any of Townes' habeas claims, § 2244(d)(1)(d)'s one-year limitations provision is inapplicable. Accordingly, a certificate of appealability will not issue.

* * *

For the reasons set forth above, the conclusion in Magistrate Judge Francis' Report and Recommendation is accepted; respondent's motion to dismiss Townes' petition is granted. A certificate of appealability will not issue.

SO ORDERED.