Full opinion text
OPINION AND ORDER DENISE COTE, District Judge. William Pinero (“Pinero”) brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his 1997 conviction for murder in the Supreme Court of New York, Bronx County. On May 25, 2007, Magistrate Judge Douglas F. Eaton issued a report (the “Report”) recommending that the petition be denied. Pinero has objected to the Report. For the following reasons, the Report is adopted, and the petition is denied. BACKGROUND As described in detail in the Report, the evidence at trial established that on November 2, 1994, Pinero accompanied another man, identified as Michael Kealing, to the Bronx office of victim Glenn Walker, a Christmas tree vendor. While Pinero restrained Walker’s associate, Dirceline Delgado, Kealing shot and killed Walker. The prosecution rested its case primarily on Delgado’s eyewitness identification of Pinero and Pinero’s post-arrest statements. Delgado was hysterical and able to provide only a limited description of the two perpetrators immediately following the murder, but more than seven months later she selected Pinero from a photo array produced by the police. Pinero was then arrested. More than six months after that identification, Delgado selected Pinero from a lineup. Pinero, after receiving Miranda warnings from the police, provided several incriminating details about the murder and also repeatedly asked the investigating police detective “what kind of deal” he would get if he admitted to being present at the murder. Pinero’s defense rested on a claim that Delgado had misidentified him and on an alibi provided by Pinero’s former girlfriend, who testified that Pinero was with her at the time of the murder. The prosecution also introduced evidence that Pinero was part of a conspiracy to extort money for the right to sell Christmas trees at a certain Bronx location. Testimony from Walker’s widow and Delgado established that Walker had paid protection money to certain unnamed persons in 1992, but stopped paying 1993 and 1994. In December 1992, two fires that were designated “nonaccidental” by the Fire Department occurred at Walker’s Christmas tree lot. George Nash, who began selling Christmas trees in that lot after Walker’s murder, testified that Pine-ro collected $10,000 in protection money from him in December 1994. The prosecution argued that all of these events — Walker’s 1992 payments, the 1993 fires, Walker’s 1994 murder, and Nash’s payments to Pinero — were part of a single extortion conspiracy concerning the rights to sell Christmas trees on the lot where both Walker and Nash worked. Pinero was convicted by a jury and sentenced to twenty-five years to life. Following conviction and sentencing, Pinero’s case wended a circuitous path through the New York state and federal courts. On direct appeal, Pinero argued that (1) admission of evidence of uncharged crimes violated his rights to due process and to a fair trial; (2) the photographic array in which he was identified was unduly suggestive because he was the only person pictured with the sole distinguishing characteristic mentioned by the complainant; (3) the trial court deprived him of the opportunity to present relevant exculpatory evidence, to wit, a scar; (4) his due process right to a fair trial was violated by the prosecution’s treatment of his alibi witness and the jury charge on the alibi defense; (5) a mistrial should have been granted because of the investigating detective’s efforts to bolster Delgado’s identification of Pinero; and (6) he was deserving of a less harsh prison sentence. The New York Supreme Court, Appellate Division unanimously affirmed the conviction and sentence, see People v. Pinero, 270 A.D.2d 212, 706 N.Y.S.2d 28 (1st Dep’t 2000) (“Pinero”), and the New York Court of Appeals denied leave to appeal, see People v. Pinero, 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 (2000) (Table). Pinero’s conviction became final on October 26, 2000. Collateral attacks in state court ensued. In November 2001, Pinero pro se filed a petition coram nobis, alleging that his appellate counsel had provided ineffective assistance by failing to raise (1) ineffective assistance of trial counsel in failing to request certain pretrial hearings; (2) a constitutional challenge based on the prosecutor’s peremptory challenges to two black veniremen; (3) the trial court’s error in denying defense counsel’s application to remove a particular juror; and (4) the court’s failure to respond adequately to a jury request for a readback of testimony. The Appellate Division denied the petition in 2002. A second coram nobis petition was filed by Pinero’s retained counsel in the summer of 2003, alleging that (1) Pine-ro’s trial counsel had been informed that Delgado had perjured herself, but failed to inform the judge; (2) trial counsel failed to advise Pinero concerning the wisdom of taking a plea offer allegedly made by the state during the trial; and (3) trial counsel failed to act on an allegation by Pinero’s parents that certain jurors were sleeping during trial. The Appellate Division denied this petition in 2004. In a subsequent motion under New York Criminal Procedure Law § 440, Pinero essentially restated the arguments made in his second coram nobis petition and added one additional claim that his trial counsel failed to make use of material exculpatory evidence in his possession. The Appellate Division denied this petition and dismissed Pinero’s appeal. While he was seeking collateral relief in state court, Pinero was also pursuing habe-as relief in federal court. His pro se habe-as petition was received by this district’s Pro Se Office on October 22, 2001. By letter dated November 20, 2001, Pinero acknowledged that his petition contained unexhausted ineffective assistance of counsel claims. Those claims were dismissed, and the remainder of the petition was stayed. That stay was lifted in March 2003 upon Pinero’s request, and he submitted an amended habeas petition. The amended petition raises the following ten grounds: Ground One Petitioner was denied due process when the admission of uncharged crimes deprived him of a fair trial, where the evidence was not relevant for any permissible purpose and its prejudicial effect greatly outweighed its probative value. Ground Two Petitioner was denied equal protection where the prosecution was allowed to peremptorily challenge all male prospective jurors during jury selection. Ground Three Petitioner was denied his right to a fair trial when an unduly suggestive photograph which singled out petitioner by a single distinguishing characteristic mentioned by the complainant was admitted into evidence. Ground Four Petitioner was denied his due process right to a fair trial when the court gave a charge that relieved the people of their burden to disprove petitioner’s alibi defense beyond a reasonable doubt and equated the jury’s disbelief of the alibi testimony with conclusive proof of petitioner’s presence at the crime scene. Ground Five Petitioner was denied due process and a fair trial by the prosecutor’s cross-examination of petitioner’s alibi witness by focusing on juvenile criminal proceedings. Ground Six Petitioner was denied effective assistance of trial counsel when counsel neglected to secure a Dunaway hearing after [he had] requested one and was granted a hearing. Ground Seven Petitioner was deprived of due process and a fair trial by the court’s refusal to allow the defendant to publish his scar to the jury unless the prisoner testified. Ground Eight Petitioner was deprived of due process and a fair trial when the Court refused to grant a mistrial for the detective telling the jury that the eyewitness picked petitioner out of the photo array. Ground Nine The sentence imposed was harsh and excessive in violation of the Eighth Amendment. Ground Ten Appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel due to counsel’s failure to use probative impeachment material, failure to alert the trial court to juror misconduct, and improperly advising petitioner with regard to his plea options. The matter was referred to Magistrate Judge Douglas F. Eaton, and on October 31, 2005, Assistant District Attorney Mary Jo L. Blanchard served and filed an Affidavit in Opposition to Pinero’s habeas petition and argued that it should be denied. Following issuance of Magistrate Judge Eaton’s May 25, 2007 Report, Pinero, now represented by counsel, filed objections to most of its recommendations and asserted that the state court’s errors resulted in Mr. Pinero’s right to a fair trial being violated where the trial court improperly admitted evidence of prior uncharged crimes, charged the jury with an imbalanced jury charge, precluded Mr. Pinero’s right to present evidence in his defense, allowed the State to proceed where it employed suggestive identification procedures and elicited testimony that the state’s pivotal witness had identified Mr. Pinero by way of pre-trial criminal procedures, and allowed the State to improperly cross examine the Defense alibi witness and where Mr. Pinero was afforded ineffective assistance of trial and appellate counsel. Moreover, Pinero noted that his failure to argue any particular issue did not evidence an intention to abandon that claim. Rather, “[i]n such a case, where the issue has not been abandoned, Petitioner will rely upon his previous submissions for the claim in question.” The state replied, and Pinero surreplied. DISCUSSION The Report identifies ten different claims in the petition and recommends rejection of each of them. The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. 28 U.S.C. § 636(b)(1); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). To accept those portions of the report to which no timely objection has been made, “a district court need only satisfy itself that there is no clear error on the face of the record.” Figueroa v. Riverbay Corp., No. 06 Civ. 5364(PAC), 2006 WL 3804581, at *1 (S.D.N.Y. Dec.22, 2006) (citation omitted). The Antiteirorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review Section 2254 petitions. Habeas relief may not be granted unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (d)(2). Each of the claims addressed in the Report is described below, with particular attention given to those that are the subject of Pinero’s objections. A. Grounds Two and Ten Barred by Statute of Limitations The Report found that Grounds Two and Ten were barred by the one-year statute of limitations for habeas petitions imposed by 28 U.S.C. § 2244(d)(1) because the issues were raised for the first time in Pinero’s coram nobis petitions, both of which were filed more than one year after his conviction became final, and were only incorporated into the amended habeas petition after the statute of limitations expired. As the Report noted, “any claim that was not contained in [Pinero’s] 10/15/01 petition ... would be time-barred unless it is subject to statutory or equitable tolling, or fits under a statutory exception.” The Report considered and rejected Pinero’s arguments that Grounds Two and Ten fell within various exceptions that rendered them timely. Pinero now objects to the Report’s determination and claims that the statute of limitations period should be “tolled while properly filed applications for State post-conviction relief are pending.” Pinero’s argument fails because the co-ram nobis petitions at issue were filed after the one-year statute of limitations on his habeas petition had already run. There was thus no limitations period to be tolled during the pendency of the coram nobis petitions. Moreover, the Report correctly found that Pinero’s argument that the statute of limitations begins to “run anew” each time a state court makes a new decision on a habeas petitioner’s applications for state collateral relief must be rejected because “[i]f the one-year period began anew when the state court denied collateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). Accordingly, Pinero’s argument that Grounds Two and Ten are timely fails, and these two proffered bases for habeas relief are barred. B. Ground One — Evidence of Uncharged Crimes The trial court admitted a significant amount of evidence, over Pinero’s objection, showing that Walker’s murder was part of a pattern of extortionate activity in which Pinero participated — specifically, evidence of extortion and arson by persons other than Pinero against Walker, and of extortion against Nash. The evidence would be admitted, the trial court ruled, only “as background narrative, to explain defendant’s motive and shared intent to murder Walker, as well as the absence of any mistake or accident.” On direct appeal from Pinero’s criminal conviction, the Appellate Division ruled that the trial court had acted within its discretion in admitting this evidence because [t]he challenged evidence, taken as a whole and in connection with the other evidence adduced at trial, provided strong circumstantial proof that defendant and his companion, acting as agents of a criminal conspiracy, killed the deceased, a vendor of Christmas trees, because he stopped paying protection money. The nexus between defendant, the various events, and the instant crime was clearly established. Pinero, 706 N.Y.S.2d at 29. The Report rejected Pinero’s habeas challenge to the admission of this evidence because the evidence was not “sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998) (citation omitted). The Report further noted that the trial court instructed the jury to consider the uncharged “wrong acts” only with respect to motive and intent, and that “[njothing in the instructions - allowed a juror to consider this as ‘propensity evidence.’ ” Ground One of Pinero’s habeas petition alleges that his due process rights were violated by the prosecution’s introduction of the evidence of uncharged crimes. In his letter to the Court responding to the state’s reply to his objections, Pinero frames his objection thusly: [T]he State’s use of the uncharged crimes and prior bad ácts was improper and prejudicial, because (1) all parties agree that the Petitioner had no involvement in the reprehensible alleged' uncharged crimes and prior bad acts that were somewhat similar to the allegations alleged at trial, and (2) that Estelle [v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ] is distinguishable from Petitioner’s case, because in Estelle the prosecution sought to prove an element of the offense, where as [sic] in Petitioner’s case the prosecution had not indicted on the conspiracy allegation. Neither the prosecution nor the trial court suggested that Pinero was personally involved in each of the “wrong acts” alleged. Rather, the trial court made clear that the evidence was to be considered only to show “that there was a motive for this particular incident, for this particular crime [with] which the defendant is charged,” and found that this purpose was within the evidentiary exception established by People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901). Pinero does not appear to cavil with the trial court’s finding under New York' law, and his ostensible argument under • the - United States Constitution fails. Estelle does not prohibit .the consideration- of- evidence of uncharged crimes for the purposes identified by the trial court, nor does it require, as Pinero appears to argue, • that the uncharged acts alleged prove an element of the crime for whieh the. defendant was charged. C. Grounds Three and Eight — -Photo Array Ground Three alleges that the photo array in which Delgado identified Pinero was tainted because (1) Pinero’s photo was different from the others shown in tint and color, and (2) Pinero’s photo was the only one shown in which the man had a “thin as opposed to heavy mustache.” The trial court admitted testimony concerning the array and identification over Pinero’s objection, observing that while there were differences among the pictured men’s mustaches, “what’s more important is that the general racial and facial characteristics of all six of these photographs are strikingly similar.” Further, the trial court found that the police officers who showed Delgado the array had not “in any way engaged in any kind of improper conduct in order to suggest to the witness to select the defendant’s photograph from this photo array.” The Report rejected Pinero’s contention that the photo array was impermis-sibly suggestive, finding no reason to disagree with the trial court’s assessment of the array and the police officer’s presentation of it. The Report rejected Ground Eight of Pinero’s habeas petition because it referred to testimony that was stricken from the trial record. Pinero objects to both of the Report’s findings. With respect to Ground Three, Pinero first reasserts that he “stood out from all the other persons [in the photo array] and the photo used was clearly distorted in comparison to the rest.” Second, Pinero makes much of the fact that after Delgado identified him in a photo array, the police officers decided to show her a second array. He claims that this reflected a belief on the police’s part “that the person who held Ms. Delgado down during the events in question was contained in the second photo array,” and that Delgado’s identification of Pinero in the first array proves the array’s suggestiveness. Moreover, Pinero claims that Delgado “did in fact identify two persons” in the photo array that did not include a picture of him, apparently suggesting that her identification of Pinero in the first array was unreliable. All of Pinero’s objections are merit-less. First, Pinero’s objection to the array’s suggestiveness does nothing to detract from the trial court’s determination that the array and its presentation to Delgado were in compliance with constitutional dictates. Because this objection merely restates the argument rejected by the Report, it is again rejected here. Second, the police officer who showed the array to Delgado testified that he originally believed that Pinero had been driving the getaway car for the perpetrators of Walker’s murder, and that the individual or individuals who restrained Delgado were pictured in the second array he showed to her. He was therefore “shocked” when Delgado identified Pinero as the one who had restrained her. Without more, the police officer’s belief about the identity of a suspect prior to a photo array identification by the sole eyewitness to a crime is not probative of that array’s suggestiveness. Accordingly, this argument fails. Further, the police officer testified only that Delgado “recognized” two men in the second photo array; she did not link them in any way to Walker’s murder. Because this recognition does not bear in any way on her identification of Pinero as the one who restrained her, this argument fails as well. With respect to Ground Eight, Pinero again avers that the prosecution violated his right to a fair trial by informing the jury that Delgado had identified him through the photo array. As the Report noted, this testimony was stricken from the trial record, and Pinero’s claim therefore lacks merit. D. Ground Four—Jury Instruction concerning Alibi Defense Pinero’s ex-girlfriend Stephanie Baldes served as an alibi witness for him, testifying that he was with her and another man at the time of Walker’s murder. The trial court declined Pinero’s request to include an instruction that “it is the People who must disprove the alibi beyond a reasonable doubt,” and Ground Four alleges that the omission of those words was error. Ground Four further posits that the charge as given relieved the state of the burden of proving Pinero’s guilt beyond a reasonable doubt. The Report rejected this argument, finding that the trial court’s charge was adequate because it “instructed the jury about the presumption of innocence” and “reiterated numerous times that the burden of proof was on the People to prove every element of the crime beyond a reasonable doubt.” Pinero states that his defense hinged upon his alibi, and objects that the trial court failed “to properly articulate the State’s burden of disproving that Defense,” thereby “markedly undermining] the weight to be accorded the Defense’s alibi evidence.” Specifically, Pinero takes issue with the trial court’s instruction that “if the evidence as to alibi, either by itself or when taken into consideration with all the other evidence, raises a reasonable doubt in your minds as to this defendant’s guilt, he is entitled to acquittal.” He claims that this instruction engendered an “inference ... that the Defense had the burden of not only reasonable doubt, but the Defense[’]s alibi evidence had to create reasonable doubt.” As the Supreme Court has instructed, a federal habeas court must evaluate a trial court’s jury instruction to determine “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Examining the charge as a whole, the habeas court must assess “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the standard of proof beyond a reasonable doubt.” Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.1996) (citation omitted). In the instant case, as the Report observed, the trial court repeatedly instructed the jury on the presumption of innocence and that it was the state’s “responsibility to prove beyond a reasonable doubt all the elements of each crime including the fact that the defendant was present at the time and place of the incident.” The trial court further advised the jury that “[t]he defendant has no obligation to prove or disprove anything, including his whereabouts.” Given these instructions, neither the omission to which Pinero objects nor the alleged inference raised by the alibi instruction could have led the jury to misunderstand that the burden of proof rested on the state. Because there was no likelihood of a conviction based on insufficient proof, there was no constitutional error in the jury charge and Pinero’s objection is rejected. E. Ground Five—Cross-Examination of Alibi Witness The trial court allowed the prosecution to question Pinero’s alibi witness, his ex-girlfriend Stephanie Baldes, about a theft to which she had allegedly pleaded guilty in Toronto, Canada in 1986, even though the prosecution had no documentary evidence of the plea. Pinero claims that this questioning violated New York law, which he argues proscribes cross-examination of a witness as to a prior conviction without providing documentary proof substantiating that conviction, and therefore violated his right to a fair trial. The Report rejected this argument and found that the “prosecutor’s limited questioning of Baldes did not deprive Pinero of a fair trial,” because (1) the prosecutor “was not able to get the admission he wanted from her,” (2) “[t]he jury was free to believe all or part or none of her testimony,” and (3) the line of questioning “probably had little effect on the jury, certainly not to the extent to make the trial unfair.” In cursory fashion, Pinero’s objection repeats his original contention that the prosecution’s cross-examination of Baldes violated New York state law. This argument, however, does nothing to shed light on whether his conviction violated the United States Constitution. As the Report made clear, citing Supreme Court precedent, “it is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution ... of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Because Pinero has not identified any way in which the cross-examination violated his constitutional rights, this objection fails. F. Ground Six — Ineffective Assistance of Trial Counsel Ground Six alleges that Pinero’s trial counsel provided ineffective assistance because he failed to conduct pre-trial probable cause hearings under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Report rejected this argument because Pinero’s trial counsel had conducted other types of pre-trial hearings, and because Delgado’s positive photo array identification of Pinero as the man who had restrained her during Walker’s murder provided probable cause for Pinero’s arrest. Pinero objects and claims that a Dunaway hearing would have forced the police department to explain “how was it that he became the focal point of this criminal investigation,” even though the physical description initially given by Delgado was general and “cryptic.” This argument is meritless. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must prove that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Because it is beyond peradventure that as there was probable cause for Pine-ro’s arrest — to wit, Delgado’s identification of him in a photo array — Pinero could not have benefited from a Dunaway hearing. Because there was no prejudice to Pinero, Ground Six of his habeas petition fails. G. Ground Seven — Publication of Pine-ro’s Scar Pinero claims in Ground Seven that he was deprived of his due process right to a fair trial by the trial court’s refusal to allow him to publish his scar to the jury unless he testified. According to Pinero, his former roommate and a police detective offered discrepant testimony about whether Pinero had any distinguishing marks or features, and the detective’s failure to recall the scar on Pinero’s head called into question the reliability of his testimony. The trial court appears to have rejected Pinero’s request for lack of foundation, noting that there was nothing in the trial record describing “when that scar was created or whether it was there at such time as you claim the detective should have seen it.” The trial court deemed the scar “testimonial,” and ruled that Pinero could only publish it to the jury if he would submit to cross-examination. The Report opined that the trial court might have erred in this ruling but nonetheless found that its decision was not contrary to, or an unreasonable application of, Supreme Court precedent establishing that a defendant is not denied “a fair opportunity to defend against the State’s accusations whenever critical evidence favorable to him is excluded.” Montana v. Egelhoff, 518 U.S. 37, 53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion of Scalia, J.). Likewise, the Report discerned no error in the Appellate Division’s finding that any error by the trial court “did not result in prejudice to [Pinero] in view of the minimal probative value of the scar and the fact that defendant made the jury aware of the scar in any event,” or its observation that “there was overwhelming evidence of defendant’s guilt.” Pinero, 706 N.Y.S.2d at 29. Pinero’s objection notes the trial court’s possible error in regarding his scar as “testimonial,” and states in conclusory fashion that the trial court’s preclusion of this evidence “violates Mr. Pinero’s right to present evidence.” The Supreme Court has made clear that there is no “absolute entitlement to introduce crucial, relevant evidence,” and that “the introduction of relevant evidence can be limited by the State for a valid reason.” Egelhoff, 518 U.S. at 53, 116 S.Ct. 2013 (plurality opinion of Scalia, J.) (citation omitted). Here, the trial court denied Pinero’s request to publish his scar because of a lack of foundation concerning the scar’s provenance and age. Because this was a valid reason for excluding the evidence, there was no error in this evidentiary ruling. H. Ground Nine — Excessive Sentence Pinero claims that his sentence of twenty-five years to life violates his rights under the Eighth Amendment. The Report rejected this claim because a sentence within the range permitted by state law— as this sentence is — presents no federal constitutional issue. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992). Pinero does not make any specific objection to the Report’s finding, but rather relies upon previous submissions. Because there was no error in the Report’s statement or application of the law, this argument is rejected. CONCLUSION Having reviewed the Report with care, there is no facial error in its conclusions. For the reasons given in this Opinion, Pinero’s objections to the Report are denied following a de novo review of his claims. Pinero’s petition is denied. No certificate of appealability shall issue. Pinero has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir.2005). Moreover, any appeal from this order would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of Court shall dismiss the petition. SO ORDERED. REPORT AND RECOMMENDATION TO JUDGE COTE DOUGLAS F. EATON, United States Magistrate Judge. William Pinero’s habeas petition challenges his 1997 conviction for murder, after pretrial hearings and a jury trial before Justice David Stadtmauer in Supreme Court, Bronx County. On September 5, 1997, Justice Stadtmauer sentenced him to a prison term of 25 years to life. The Appellate Division affirmed the conviction, People v. Pinero, 270 A.D.2d 212, 706 N.Y.S.2d 28 (1st Dep’t 2000), leave denied, 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 (N.Y. July 28, 2000). Pinero was represented by Marvin Ray Raskin at pretrial hearings and at trial, and on appeal by Brian D. Linder and Erich J. Gleber of the Manhattan firm of dayman & Rosenberg. Pinero began this habeas proceeding pro se, but since May 2003 he has been represented by Damond J. Carter of Albany. Pinero’s first habeas petition was barely timely. Dated October 15, 2001, it was received by our Court’s Pro Se Office on October 22, 2001. Pinero soon wrote to Judge Cote to request a stay while he returned to state court to exhaust the unexhausted claims in his petition. The stay was granted on December 13, 2001, and lifted on April 24, 2003, by Judge Cote, who then referred the petition to me. On October 31, 2005, Bronx Assistant District Attorney Mary Jo L. Blanchard served and filed an Affidavit in Opposition to the Petition; it annexed a Memorandum of Law and Exhibits 1-27. (I shall refer to any of these exhibits as “Exh. _”.) She also provided transcripts of the state proceedings. For the following reasons, I recommend that Judge Cote deny the petition. The proceedings since the 1997 trial have been protracted. The next three pages contain an abridged chronology. 9/5/97 Sentence and Judgment 3/30/00 Appellate Division affirmed conviction 7/28/00 Leave to appeal denied 10/26/00 The deadline for a certiorari petition expired, and the conviction became final 10/22/01 First habeas petition (dated 10/15/01) received by our Court (Docket Item # 1) 10/26/01 The one-year statute of limitations expired 11/20/01 Pinero filed his first comm nobis motion in state court 12/13/01 Judge Cote issued the first Zarvela stay (Docket Item # 3) 12/10/02 Appellate Division denied first comm nobis motion 2/26/03 Leave to appeal denied 3/4/03 Pro se motion to lift Judge Cote’s 12/13/01 stay and to amend petition (with the proposed Amended Petition attached) (Docket Item # 5) 4/24/03 Judge Cote’s order lifting stay and referring the case to Judge Eaton (Docket Item # 12) 5/16/03 Damond J. Carter filed Notice of Appearance and a motion for a second stay, in order to file a second coram nobis motion (Docket Item #9) 6/27/03 Judge Eaton issued the second Zarvela stay (Docket Item # 11) 6/8/04 First Department denied the second coram nobis motion 8/24/04 Mr. Carter’s motion for a further stay (Docket Items # 13 and # 14), in order to file a CPL 440 motion (which he did not file until 5/16/05). 9/13/04 Judge Read dismissed appeal from the 6/8/04 . denial of the second comm nobis motion (3 N.Y.3d 710) 5/4/05 Judge Eaton’s Order lifting all stays, denying a further stay, and setting a briefing schedule (Docket Item # 15) 5/16/05 Mr. Carter’s CPL 440 motion to the trial judge 6/2/05 Mr. Carter’s motion asking Judge Eaton for permission to withdraw as counsel (Docket Item # 17) 7/7/05 Judge Eaton’s Order (Docket Item # 19): — denying Mr. Carter’s motion to withdraw — granting motion to proceed on proposed Amended Petition (in Docket Item # 5) — deeming Amended Petition to include the new grounds in Mr. Carter’s coram nobis application (but not the claims in the 440 motion) 7/8/05 Judge Eaton’s Order denying Pinero’s request for an extension of time and for appointment of new counsel 10/31/05 Affidavit of ADA Mary Jo Blanchard in opposition to the Amended Petition (annexing Memorandum of Law and Exhibits 1-27) (Docket Item # 23) 11/28/05 Mi’. Carter’s Declaration in support of the Amended Petition, with letter brief attached (Docket Item # 24) 3/8/06 Motion (dated 3/8/06 but received 5/10/06 because Mr. Carter mistakenly assumed this to be an EOF case) seeking a stay until a final state court decision on Pinero’s 5/16/05 440 motion (Docket Item # 25) 4/5/06 Justice Stadtmauer denied the 5/16/05 440 motion (See document attached to Docket Item #26.) 7/20/06 Appellate Division denied leave to appeal from the denial of the 440 motion 8/31/06 Mr. Carter’s motion for a further stay, in order to make yet another 440 motion (Docket Item #30) 9/11/06 Judge Eaton’s Order denying any further stay (Docket Item # 31) 9/27/06 Mr. Carter’s supplemental letter brief in support of the Amended Petition (Docket Item # —) 3/13/07 Mr. Carter’s further letter (Exh. A to this Report) FACTUAL BACKGROUND The victim of the murder was Glenn Walker, who had a business selling Christmas trees in a lot at 1925 Bartow Avenue in the Bronx, and a business selling watermelons at 405 Hunts Point Avenue. Around 3:15 p.m. on November 2, 1994, Walker was in his Hunts Point office with his associate Dirceline Delgado. He was having a telephone conversation with his wife when two men burst into the office. One man restrained Delgado while the other man shot and killed Walker. The jury concluded that the man who restrained Delgado was William Pinero. The defense at trial was misidentification — that Pinero had been mistakenly identified by Delgado. Immediately after the murder, she was hysterical and able to give police only a limited description of the shooting and the two perpetrators. The police investigated for more than seven months; on June 15, 1995, they showed her a photo array and she selected the photo of Pinero. He was arrested on January 30, 1996. The next morning, she selected him from a lineup. Delgado’s eyewitness testimony was not corroborated by any forensic evidence. There was, however, a post-arrest statement by Pinero. Detective Ortiz testified that Pinero gave several versions and ultimately provided incriminating details. (Tr. 391-423.) Detective Ortiz testified as follows. The police arrested Pinero on January 30,1996 and charged him with the November 1994 murder of Walker. After receiving Miranda warnings, Pinero made the following statements to Detective Ortiz: Richie Longo had paid $5,000 for the killing of Walker, because Longo “was greedy” and wanted the Bartow Avenue location. Longo paid half the money to “Kenny,” a man who had a baby with Longo’s niece. (Tr. 391-93.) Longo paid the other half of the money to a fat man named “Chubby” or “Chubbs.” “Chubbs” was the shooter. Pinero wasn’t there; he didn’t do it. On the afternoon of the murder, Pinero drove Richie Longo from Manhattan to the Parkchester area of the Bronx. In Parkchester, Longo made a call from a pay phone and then told Pinero that “everything was taken care of with that guy.” (Tr. 395-96.) Around 10:30 p.m., Pinero asked Detective Ortiz: “If I say I was there, what kind of deal will I get?” He got no answer. Later, he asked the same question again, and added “[D]o I go home?” He got no answer. However, he proceeded to provide several incriminating details. He admitted that he had parked his car in the Hunts Point area, and he described the building where the murder occurred. He noted that Walker’s “secretary” was present, that Walker was on the telephone, and that Walker exclaimed: “This is it.” (Tr. 403-05, 451.) (These were details that the police had previously learned from Walker’s widow and from Walker’s “secretary” Delgado.) Detective Ortiz asked Pinero: “What did you do?” Pinero replied: “I told you the story. Do I get a deal?” Detective Ortiz asked again: “Who went inside?” Pinero replied: “Chubbs and another guy. Do I get a deal?” At that point, the questioning stopped. (Tr. 401-05.) Mr. Raskin moved unsuccessfully to suppress Pinero’s statement. Justice Stadt-mauer denied the motion “in all respects.” He ruled that Pinero had understood the Miranda warnings given at the time of arrest, and that it was unnecessary to give additional warnings as the evening progressed. He ruled that all of Pinero’s statements to Detective Ortiz were voluntary. (Vol. 1 Tr. 236-37.) In this habeas proceeding, Pinero does not challenge those rulings. The prosecution also introduced evidence that Pinero had been involved in a conspiracy to extort protection money for the right to sell Christmas trees at 1925 Bartow Avenue. (See pp. 40-48, infra.) Walker’s widow (Tr. 71-73) and Ms. Delgado (Tr. 165-70, 188) testified that Walker had paid money to “some people” including “Frankie Porcaro” in 1992, but had stopped paying in 1993 and 1994. In December 1993, two fires occurred at Walker’s Christmas tree lot; the Fire Department determined that both were “non-accidental.” (Tr. 331-58.) After the November 1994 murder of Walker, George Nash ran a Christmas tree business at the same Bartow Avenue location. Nash testified that his “partner” in that business was Richie Longo, who told him they would have to pay money to a third person: there would be a one-time fee of $10,000, and Nash agreed to pay. Nash testified that the $10,000 was collected from him by Pinero — $2,500 on December 21,1994, and $7,500 the next day. (Tr. 498, 505-06.) At the pretrial hearing (Vol. 2 Tr. 9-14), and in his summation (Tr. 944-54), the prosecutor argued in essence that Pinero’s collections from Nash were part of a single extortion conspiracy involving Frankie Porcaro, Richie Longo and Pinero — encompassing Walker’s 1992 payments, the 1993 fires, the November 1994 murder of Walker, and (only seven weeks later) the resumption of payments by Walker’s replacement. The defense’s main witness was Pinero’s former girlfriend, Stephanie Baldes. She testified that at the time of the murder Pinero was with her and Richie Longo in Longo’s car, first at the Riverdale Riding Stables, and then on the way to Long Island. (Tr. 802-04.) Dr. Sanford Drob, director of psychological assessment at Bellevue Hospital, also testified for the defense. (Tr. 701-71.) He had examined Pinero. He summarized his conclusions at Tr. 728: ... [W]hen it comes to solving problems, he’s ... grossly impaired. His intellectual functioning overall is in the borderline defective range. He has serious problems in attention and concentration leading me to believe he is suffering from attention deficit hyperactivity disorder. He has problems coping with stress. He has a very low frustration tolerance and he’s likely to act in a very impulsive way in which he doesn’t think things through carefully when he is put in a stressful or difficult circumstance. PROCEDURAL BACKGROUND Direct Appeal Attorneys Brian D. Linder and Erich J. Gleber submitted a 69-page brief and a 35-page reply brief to the Appellate Division. They raised six points: Point One: The admission of evidence of uncharged crimes deprived Pinero of his due process right to a fair trial since this evidence was not relevant for any permissible purpose and its prejudicial effect greatly outweighed its probative value. U.S. Const., Amend. XIV, N.Y. Const., Art. I, § 6. Point Two: The admission of identification evidence tainted by an unduly suggestive photographic array, in which Pinero’s photograph was the only one to have the single distinguishing physical characteristic mentioned by the complainant, deprived Pinero of his due process right to a fair trial. U.S. Const., Amend. XIV, N.Y. Const., Art I, § 6. Point Three: The court deprived the defendant of the opportunity to present relevant exculpatory evidence when it refused to allow defendant to publish his scar to the jury unless he testified at trial, in violation of the defendant’s due process right to a fair trial. U.S. Const., Amend. XIV, N.Y. Const., § 6. Point Four: Defendant-Appellant was denied his due process right to a fair trial by (A) the prosecutor’s cross-examination of defendant’s alibi witness focusing on juvenile criminal proceedings, and (B) a jury charge that relieved the people of the burden to disprove the alibi defense beyond a reasonable doubt and that equated the jury’s disbelief of the alibi testimony with conclusive proof of the defendant’s presence at the crime scene. U.S. Const., Amend. XIV, N.Y. Const., § 6. Point Five: The court should have granted defense counsel’s motion for a mistrial, and the defendant was denied his due process right to a fair trial, when Detective Ortiz told the jury that Delgado had identified the defendant from a photo array. U.S. Const., Amend. I, N.Y. Const., § 6. Point Six: William Pinero was deserving of a less harsh prison sentence than the maximum sentence of twenty-five years to life imprisonment. The Appellate Division unanimously affirmed the conviction and wrote: The court properly exercised its discretion in receiving evidence of uncharged crimes, not all of which directly involved defendant himself, as evidence of motive and as background, completing the narrative of events. The challenged evidence, taken as a whole and in connection with the other evidence adduced at trial, provided strong circumstantial proof that defendant and his companion, acting as agents of a criminal conspiracy, killed the deceased, a vendor of Christmas trees, because he stopped paying protection money, (see, People v. Ponnapula, 266 A.D.2d 32, 698 N.Y.S.2d 219). The nexus between defendant, the various events, and the instant crime was clearly established. Any error in the court’s refusal to permit defendant to display his facial scar to the jury did not result in prejudice to him in view of the minimal probative value of the scar and the fact that defendant made the jury aware of the scar in any event. We also note there was overwhelming evidence of defendant’s guilt. Defendant’s challenge to the alibi charge is not preserved for our review (People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212). We perceive no abuse of sentencing discretion. We have considered and rejected defendant’s remaining claims. People v. Pinero, 270 A.D.2d 212, 706 N.Y.S.2d 28 (1st Dep’t 2000). In his letters requesting leave to appeal (Exhs. 7 and 8), Mr. Linder requested review of the first four Points, emphasizing in particular Point One (the uncharged extortion conspiracy) and Point Four B (the instruction on the alibi defense). On July 30, 2000, Associate Judge Albert M. Rosenblatt ruled that “there is no question of law presented which ought to be reviewed by the Court of Appeals.” (Exh. 11; People v. Pinero, 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 (N.Y.2000)(Table).) Collateral attacks in state court In November 2001, Pinero filed a pro se coram nobis petition (Exh. 13). It alleged ineffective assistance in that appellate counsel had failed to raise four issues in the appellate briefs: (1) ineffectiveness of trial counsel in failing to request pretrial Mapp and Dunaway, hearings; (2) a Bat-son claim based on the prosecutor’s peremptory challenges to two black male potential jurors; (3) error by the trial court when it denied defense counsel’s application to remove a particular juror; (4) the court’s failure to respond sufficiently to a jury request for a readback of testimony. The Appellate Division denied coram nobis in 2002. In the summer of 2003, Pinero’s newly retained counsel, Damond J. Carter, filed a second petition for coram nobis, raising three issues that allegedly should have been raised by trial counsel and by appellate counsel. First. Pinero’s parents alleged that the court interpreter heard Delgado make statements (during the trial but outside the courtroom) that indicated she was not telling the truth when she testified that Pinero was the man who restrained her. Pinero’s parents also alleged that the interpreter relayed this to trial counsel, but counsel did not relay it to the judge. Second. Trial counsel never advised Pinero on the wisdom of accepting or rejecting a plea offer (apparently made in the midst of trial) carrying a sentence of 12$ to 25 years. (It appears that Pinero has now dropped this issue.) Third. Trial counsel failed to act' on an allegation by Pinero’s parents that certain jurors were sleeping during trial. (It appears that Pinero has now dropped this issue.) The Appellate Division denied the second co-ram nobis motion in 2004. In May 2005, Mr. Carter made a CPL 440 motion to the trial judge. (Exh. 25.) It was essentially a rehash of Mr. Carter’s coram nobis motion, but it added one new claim — that trial counsel had “failed to use material exculpatory evidence in Pinero’s defense, where the District Attorney’s key witness previously told authorities that person(s) in question had on face mask(s).” That motion had no basis in the record; it was denied on April 5, 2006 and the Appellate Division dismissed the appeal on July 20, 2006. On August 31, 2006, Mr. Carter requested me to grant yet another stay so he could make a third coram nobis motion. He now alleged that trial counsel failed to realize that the plea offer had proposed a sentence term (12)& to 25 years) that would have been “illegal.” (Docket Item # 30.) On September 1, 2006, I refused to grant any further stay. The habeas petition in our Court As noted above, Pinero’s original petition was barely timely; it was received by our Court’s Pro Se Office on October 22, 2001. By letter dated November 20, 2001, Pinero acknowledged that his petition contained unexhausted claims (primarily ineffective assistance of counsel). Judge Cote dismissed the ineffective assistance claims for lack of exhaustion, and stayed the remainder of the petition. (Docket Item #3.) On March 4, 2003 Pinero, still pro se, timely requested that the stay be lifted, and submitted his proposed Amended Petition. (Docket Item # 5.) Judge Cote lifted the stay and referred the matter to me. After the delay for the second comm nobis motion, I ruled on the Amended Petition by memorandum and order dated July 7, 2005 (Docket Item # 19), in which I wrote: (a) I grant Pinero’s longstanding motion to proceed on his proposed Amended Petition (Docket Item # 5, which contains six [seven] grounds and a memorandum of law as to Grounds One, Two and Six); (b) I deem that Amended Petition to include the claims in Mr. Carter’s comm nobis application (which was exhausted on September 13, 2004), but not to include Mr. Carter’s recent motion in Supreme Court, Bronx County. Therefore, the final version of the Amended Petition raises the following ten grounds: Ground One Petitioner was denied due process when the admission of uncharged crimes deprived him of a fair trial, where the evidence was not relevant for any permissible purpose and its prejudicial effect greatly outweighed its probative value. U.S. CONST. AMEND. XIV. Ground Two Petitioner was denied equal protection where the prosecution was allowed to peremptor[il]y challenge all male p[ro]spective jurors during jury selection. U.S. CONST. AMEND. XIV. Ground Three Petitioner was denied his right to a fair trial when an unduly suggestive photograph which singled out petitioner by a single distinguishing characteristic mentioned by the complainant was admitted into evidence. U.S. CONST. AMEND. XIV. Ground Four Petitioner was denied his due process right to a fair trial when the court gave a charge that relieved the people of their burden to disprove petitioner’s alibi defense beyond a reasonable doubt and equated the jury’s disbelief of the alibi testimony with conclusive proof of petitioner’s presence at the crime scene. Ground Five Petitioner was denied due process and a fair trial by the prosecutor’s cross-examination of petitioner’s alibi witness by focusing on juvenile criminal proceedings. Ground Six Petitioner was denied effective assistance of trial counsel when counsel neglected to secure a Dunaway hearing after [he had] requested one and was granted a hearing. Ground Seven Petitioner was deprived of Due Process and a fair trial by the Court’s refusal to allow the Defense to publish his scar to the jury unless the prisoner testified. Ground Eight Petitioner was deprived of Due Process and a fair trial when the Court refused to grant a mistrial for the detective telling the jury that the eyewitness picked petitioner out of the photo array. Ground Nine The sentence imposed was harsh and excessive in violation of the Eight Amendment. Ground Ten Appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel due to counsel’s failure to use probative impeachment material, failure to alert the trial court to juror misconduct, and improperly advising petitioner with regard to his plea options. On October 31, 2005, Assistant District Attorney Mary Jo L. Blanchard served and filed an Affidavit in Opposition (“Blanchard Aff.”) which annexed Exhibits 1-27 and a Memorandum of Law. (Docket Item # 23.) She argues that the petition should be denied for the following reasons: (a) the petition is untimely because Pinero failed to abide by my June 27, 2003 Order; (b) his ineffective assistance of appellate counsel claims are exhausted, but are untimely because they do not relate back to his original timely petition; (c) his ineffective assistance of trial counsel claim is unexhausted, and untimely because it does not relate back to his original timely petition; (d) his alibi charge claim is exhausted, but does not present a federal constitutional question, and is further barred from review because the state court determination rests on an independent and adequate state ground; (e) his Trowbridge claim is deemed exhausted, but does not present a federal constitutional question; (f) his claim concerning the cross-examination of his alibi witness is exhausted, but does not present a federal constitutional question, and is further barred from review because the state court determination of that claim rests on an independent and adequate state ground; (g) his sentencing claim is unexhausted, and does not present a federal constitutional question; (h) his claim about the extortion evidence (Ground One) is exhausted, but does not present a federal constitutional question; (i) he exhausted his claim that his in-court identification was tainted by an unduly suggestive photo array, but the state court determination of that claim was not contrary to, or an unreasonable application of, clearly established federal law; and (j) he exhausted his claim that he was deprived of the right to present a defense (i.e., not allowed to publish his scar to the jury), but the state court determination of that claim was not contrary to, or an unreasonable application of, clearly established federal law. (Blanchard Aff. pp. 9-10.) DISCUSSION A. The Statute of Limitations Bars Grounds Two and Ten The statute of limitations for § 2254 petitions is set out in 28 U.S.C. § 2244(d)(1), which states, in pertinent part: (d)(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 ran 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; * * * * * * (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. In Pinero’s case, the New York Court of Appeals denied leave on July 28, 2000; his conviction became final on October 26, 2000. Therefore the one-year statute of limitations for a habeas petition expired on October 26, 2001, as I stated in my 5/4/05 Memorandum and Order, 2005 WL 1075323 at page l. His original, pro se petition was dated October 15, 2001 and arrived in our Court on October 22, 2001. Assuming he gave the petition to prison officials on the same day he signed it, there were only eleven days left to run. Therefore any claim that was not contained in his 10/15/01 petition (and not added before eleven more days expired) would be time-barred unless it is subject to statutory or equitable tolling, or fits under a statutory exception (e.g., § 2244(d)(2)). At the outset, ADA Blanchard argues that I should vacate the stay nunc pro tunc and dismiss the whole petition (a possibility referred to in Judge Cote’s 12/13/01 order) because Mr. Carter did not comply with my 6/27/03 order directing him to send me a prompt report concerning the final decision by the state court. She argues that he was dilatory in pursuing the habeas petition and dilatory in pursuing the state remedy available to him under CPL § 440.10. Ms. Blanchard makes a strong argument, but I decline to recommend dismissing the entire petition so abruptly. However, I do recommend that Grounds Two and Ten be dismissed as untimely. Pinero (when he was still pro se) complied with Judge Cote’s Zarvela order by timely returning to federal court within the 30-day time limit. Therefore, the statute of limitations does not bar any claims that were dismissed by Judge Cote but were subsequently exhausted in a timely fashion. However, the statute of limitations does bar the claims in the second coram nobis motion. The second Zarvela order (Exh. 18, signed by me on 6/27/03) imposed two conditions for timeliness. Mr. Carter fulfilled only one of those conditions: he filed the second coram nobis motion in state court on or about July 26, thus meeting my deadline of July 28. But my 6/27/03 order had also directed him to file a detailed affirmation “within 30 days after Pinero receives the final decision by the state court.” The high court of New York issued its final decision on September 13, 2004. Mr. Carter did not advise me about this within the next 30 days; he did not even attempt to advise me for more than five months. Mr. Carter tries, in vain, to escape the consequences of this fact. In his “letter brief in support of Petitioner’s Reply to the State’s Opposition,” dated November 15, 2005 (Docket Item # 24), and in his Supplemental Letter dated September 27, 2006, Mr. Carter asserts that he did comply with the second requirement of my 6/27/03 order, by virtue of his August 2004 motion for a further stay. In that August 2004 motion, he did say (in Docket Item # 14) that “the Petitioner currently has an application for leave to appeal before the New York Court of Appeals.” But that information did not comply with my 6/27/03 order, which required an affirmation “after ... the final decision,” and moreover “an affirmation (i) stating whether he believes he has exhausted all of his state court remedies, (ii) explaining any possible further state court remedies and (iii) stating whether he is filing an amended petition or is resting on his original petition.” As a result of Mr. Carter’s failure to comply, it was only in May 2005 that I happened to learn that an application thought to be currently pending in state court had been terminated many months earlier. Mr. Carter argues his theory at length, but it pointless to discuss it further. In another effort to evade the time bar, Mr. Carter tries to take refuge in § 2244(d)(1)(D): The limitation period shall run from the latest of * * * (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. He says that the relevant “factual predicate” was Justice Read’s 9/13/04 denial of leave to appeal, and that 9/13/04 was “the date that the claim arose.” Mr. Carter’s argument is convoluted. Rather than attempting to paraphrase it, I will now quote from his 9/27/06 letter at pp. 2-4: The United States Supreme Court having recently decided at what time Petitioner’s previously unexhausted claims begin to run, Petitioner’s claims regarding the effectiveness of trial counsel are not [to] be time-barred.... In pertinent part, § 2244 ([d] )(1) provides, the one-year statute of limitation 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; ... (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 one-year statute of limitations period is tolled while properly filed applications for State post-conviction relief are pending. Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999).... What does or does not constitute the factual predicate is currently unsettled law. Johnson v. U.S., 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). However, a State court’s decision and order in a petitioner’s case does constitute part of the factual predicate, for purposes of 28 U.S.C. § 2244( [d] )(1)(D). [fn2] Johnson, 125 S.Ct. At 1577; Shannon v. Newland, 2005 WL 1340841[, 410 F.3d 1083] (9th Cir.2005). This is the case, because as a statute of limitations ordinarily does not begin to run until a claimant’s cause of action is complete and present, it is highly doubtful that [CJongress intended a time limit on pursuing a claim to expire before the claim arose. Johnson, 125 S.Ct. at 1578; Graham County S[o]il and Water Conservation Dist. Et al. v. U.S. Ex Rel[.] Wilson, [545 U.S. 409,] 125 S.Ct. [2444] 2244, 2250-51[, 162 L.Ed.2d 390] (2005); Bay Area Laundry and Dry Cleaning Pension Trust Fund v. [Ferbar] Ferber Corp. Of Cal., 522 U.S. 192, 201[, 118 S.Ct. 542, 139 L.Ed.2d 553] (1997).[fn3] The text of § 2244(d)(1)(D), “clearly links the running of the limitation period to the discovery of the facts supporting the claim or claims presented.” Johnson, 125 S.Ct. at 1579. Nonetheless, an interpretation that would allow the statute of limitations to run and even expire before the § 2244 (or § 2254) clai