Chrysler v. Guiney (14 F. Supp. 3d 418, 2014)

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Petitioner Gregory Chrysler, through counsel, filed the instant petition for the writ of habeas corpus (“the Petition” or “Habeas Petition”) pursuant to 28 U.S.C. § 2254, challenging his July 2000 conviction. The Court referred the case to the Honorable Magistrate Judge Lisa M. Smith, pursuant to 28 U.S.C. § 636(b), who issued a Report and Recommendation (“R & R”), concluding that the Petition should be dismissed as untimely. (R & R 14 (Dkt. No. 43).) Petitioner submitted timely objections, again through counsel. (Petitioner’s Objections to R & R Denying Habeas Corpus Petition as Untimely Filed (“Obj.”) (Dkt. No. 45).) For the reasons stated herein, the Court adopts the conclusion of the R & R that the Petition should be denied, although for different reasons.

I. Background

A. The Underlying Events

Petitioner was a marijuana dealer operating in and around the town of New-burgh, New York. (See Resp’t’s Mem. at 2.) In late August 1998, police arrested Petitioner for felony marijuana possession based, at least in part, on information provided by a confidential informant. (See id. at 8-9.) Unknown to Petitioner at the time, the informant was Michael Ronsini (“Ronsini”), who sold marijuana as part of Petitioner’s criminal enterprise and whom police had arrested a few weeks prior to Petitioner. (See id. at 6-8.)

Upset by his arrest and knowing that someone had cooperated with the police, Petitioner sought to discover the identity of the informant, whom Petitioner sometimes referred to as the “rat.” (See id. at 9-11.) Initially, Petitioner correctly suspected Ronsini. (See id.) However, after conversations with Ronsini and others, Petitioner at some point came to suspect Dominic Pendino (“Pendino”), another of Petitioner’s associates. (See id. at 10-12.)

On the morning of March 3,1999, Pendi-no went missing. At approximately 5:47 a.m., Pendino’s wife, Cynthia, saw him leave for work. (See id. at 17.) But shortly after 6:00 a.m., and then again approximately one hour later, Cynthia received phone calls from Pendino’s employer asking where he was. (See id. at 18.) Cynthia ultimately went outside and found Pendino’s car in the driveway, the keys still in the ignition. (See id.) Alarmed, she immediately called the police. (See id.) The responding officers conducted a search of the premises, whereby they observed droplets of blood in the driveway and other areas. (See id. at 19.) The officers then declared the area to be a crime scene and called for additional assistance from the Newburgh Police Department and the New York State Major Crimes Unit. (See id.)

After a thorough investigation of the scene, police investigators found a number of pieces of evidence indicating that Pendi-no had possibly been murdered. First, they found a fresh trail of blood droplets leading from Pendino’s driveway to a large pool of blood in the backyard, and then a heavier trail of blood leading from that location to the driveway belonging to the house next door. (See id. at 20.) Second, they found Pendino’s blood-stained pager near the driveway. (See id. at 20-21.) Third, they found a pair of eyeglasses, which they later traced to Petitioner. (See id. at 20, 24.) Also, later that afternoon, after police told Ronsini about Pendino’s disappearance, Ronsini provided tape recordings of conversations between him and Petitioner wherein Petitioner expressed his strong desire to seek revenge against the “rat.” (See id. at 10-11, 22.)

During their investigation into Pendino’s disappearance, police investigators came to suspect Petitioner and one of his associates, Larry Weygant (“Weygant”). Based on evidence collected during their investigation, police obtained and executed a search warrant authorizing them to seize two vehicles connected to Petitioner, among other items. (See id. at 23-24.) Forensic testing initially revealed the presence of blood in both vehicles, (see id. at 26-27), and subsequent DNA testing confirmed the blood to be Pendino’s, (see id. at 37-38). Additionally, police investigators approached Weygant’s girlfriend, Sal-vatriece Ferretti (“Ferretti”), and established a relationship whereby Ferretti spoke to police and gave them information on both suspects “virtually everyday” during their investigation. (See id. at 27-28.)

In early May 1999, police arrested Petitioner and Weygant. (See id. at 36.) A grand jury subsequently returned an Indictment against Petitioner and Weygant on June 7, charging them with two counts of murder in the second degree, one count of conspiracy in the second degree for conspiring to murder Pendino, and one count of conspiracy in the fifth degree for conspiring to possess marijuana. (See Resp’t’s Ex. 1 (First Indictment).) But for reasons that are not relevant to the Petition, the prosecution convened a second grand jury to consider the charges. (Resp’t’s Ex. 15 at 184-85.) Weygant, but not Petitioner, chose to testify during these proceedings. (Resp’t’s Mem. at 38-43.) Ultimately, the Grand Jury returned a superseding indictment on October 22, 1999, charging the same four counts. (See Resp’t’s Ex. 13 (Second Indictment).) To this day, Pendino’s body has never been found. (See Pet. ¶ 40.)

B. Pre-trial Proceedings

During pre-trial proceedings, it was discovered that the police department responsible for investigating the crime, the Newburgh Police Department (“the Department”), had been using a system that recorded all of the Department’s incoming and outgoing telephone calls, at all times relevant to the investigation. (Resp’t’s Mem. at 47; Resp’t’s Exs. 18 (Order To Show Cause), 19 (Aff. in Supp. of Order To Show Cause).) The prosecutor requested a protective order in relation to the taped conversations, arguing that it would impose a tremendous burden on the Department to isolate and record all of the phone calls relevant to the investigation of Petitioner and Weygant. (Resp’t’s Exs. 18,19.)

The trial court (Berry, J.), held a hearing on the issue, and credited testimony that to ascertain the existence of all recorded conversations going back more than a year and to retrieve and record those conversations would take two detectives working full time one to three years or would require a substantial monetary investment in new equipment, which equipment would not be available for forty-five to sixty days. (See Resp’t’s Mem. at 47-54; Resp’t’s Ex. 24 (Decision and Order granting requested protective order).) The trial court also found that Department officers had credibly testified that they had not been previously aware that the tape recordings might yield discovery material, and that the District Attorney’s Office had not been previously aware that the Department regularly recorded its phone calls. (See Resp’t’s Mem. at 53; Resp’t’s Ex. 24.) In a written decision, the trial court ruled that the Department was required to produce recordings of phone conversations between March 3,1999, the date of the incident, and May 3, 1999, the date of the arrests, but was not required to find or produce relevant recordings outside that window. (R & R 3; see also Resp’t’s Ex. 24.)

Also before trial, Petitioner moved to sever his trial from Weygant’s. (See Resp’t’s Ex. 30 at 341 (Hr’g Tr.).) At a hearing, however, Petitioner withdrew his severance motion after allocution with the court, during which Justice Berry expressly stated that he would have granted Petitioner’s severance request if it had not been -withdrawn. (See id. at 341, 345-48, 377-79.) Justice Berry also discussed with Petitioner several items of evidence that would be admissible against Weygant but would be otherwise inadmissible against Petitioner; but, according to Petitioner, Justice Berry did not expressly state that the prosecutor would introduce Weygant’s statements to the second Grand Jury against Petitioner, or that counsel would not have the opportunity to cross-examine Weygant as to the substance of those statements. (Pet. ¶¶ 28-30; see also Resp’t’s Ex. 30 at 345-48, 377-79 (Hr’g Tr.).)

C. The Trial

At the joint trial, the prosecution introduced two forms of evidence relevant to the instant Petition. First, it called to the stand Ferretti, who testified about conversations between her and Weygant, many of which were inculpatory as to Petitioner. (See, e.g., Tr. 2128-29 (recounting a conversation with Weygant wherein Weygant suggested that he and Petitioner had been digging a ditch); id at 2131-32 (recounting Weygant’s statement to her that the police had searched Petitioner’s house because Petitioner was an “official suspect” in the murder investigation); id at 2150-52 (recounting a conversation between Weygant and Petitioner wherein each made statements indicating an intent to avoid detection and destroy evidence); id at 2155-56 (recounting a conversation with Weygant where Weygant described how Petitioner intended to explain to police the presence of his eyeglasses at the scene of the crime); id at 2160-61 (recounting Weygant’s statements expressing frustration that he “just killed a kid for [Petitioner]”); id at 2173 (recounting Weygant’s confession wherein he described Petitioner’s participation in the murder).) Second, it admitted into evidence and read into the record Weygant’s testimony to the second Grand Jury, wherein Weygant made many statements inculpatory as to Petitioner. (See, e.g., id. at 1794-96 (discussing Petitioner’s prior charge and guilty plea for felony marijuana possession); id. at 1797-99 (recounting Petitioner’s multiple statements to Weygant indicating Petitioner’s belief that he was charged with the felony because “somebody [had] ratted him out”); id. at 1801-02 (commenting on a tape recording of a telephone call between Petitioner and Ronsini wherein Petitioner threatened Ronsini because he believed him to be the “rat”); id. at 1804-05 (describing Petitioner’s involvement in digging a ditch); id. at 1805-06 (testifying that Petitioner believed, at certain times, that the victim was the person who “ratted” him out); id. at 1809 (recounting certain details regarding Petitioner’s eyeglasses).)

In its summation, the prosecution relied heavily on both Ferretti’s trial testimony and Weygant’s grandjury testimony as substantive evidence of Petitioner’s guilt. First, it used Petitioner’s eyeglasses, which were found at the scene of the crime, to connect Petitioner to the murder, and in doing so specifically referred to Weygant’s grandjury testimony to establish that Petitioner and Weygant “were concerned about those glasses.” (Id. at 3356-57 (noting that in his grandjury testimony, “[Weygant] indicates going down to the optical store ... and speaking to [the purveyor] with [Petitioner] about those eyeglasses”); id. at 3383 (“[Y]ou know from the forensic experts ... [that] there were at least two people there that day. You know one of them, based on the eyeglasses, is [Petitioner].”); id. at 3438 (“You know from the defense pathologist ... [that] two people were at the scene. [Petitioner], you know from the glasses[,] and somebody else.”); id. at 3441 (“When you go to do some dirty work, you use your old clothes. If you are doing yard work, you’re going to kill somebody, you don’t wear your brand new glasses. You wear your older glasses, common sense.”); id. at 3445-46 (“When you read the grand jury transcript, you’ll see a lot of self-serving denials.... [Weygant] says the thing about the glasses. He gives a couple different versions. The last version he talks about the eyeglasses and, also, look in the grand jury minutes. He admits there when he says one of the statements to Ferretti that [Petitioner’s] going to say. [Weygant] tells [Ferretti that Petitioner] is going to say that [the victim] found the glasses and was returning them.... [H]e knows that he’s implicated in it and that his partner, [Petitioner], is implicated in it.”).)

Second, the prosecution used' Weygant’s grandjury testimony to show that Petitioner had previously been charged with felony marijuana possession, which charge, it argued, was the basis for Petitioner’s motive to kill Pendino, whom Petitioner believed had “ratted him out.” (See id. at 3401 (‘Weygant admits discussing [the identity of the rat] with [Petitioner] on numerous occasions. You’ll see ... in [Weygant’s grandjury testimony] the facts of the marijuana case that [Petitioner] and his wife had been charged with.”).)

Third, the prosecution used Weygant’s grandjury testimony to corroborate testimony that Petitioner helped dig a ditch in which he and Weygant allegedly disposed of the body. (See id. at 3428-29 (“[Y]ou can read in the grand jury minutes, [Wey-gant] says that [Petitioner] didn’t help on the ... trench. He says he showed up.... Did [Petitioner] bring any tools to that? ... [S]hortly before the homicide [Petitioner] borrowed a spade.... There is only one thing you can do with a spade and that’s dig a ditch.”); id. at 3430 (‘Weygant’s conversations, himself, corroborate what [Ferretti] stated about the ditch.”).)

Finally, the prosecution multiple times used Weygant’s grandjury testimony and Ferretti’s testimony as general substantive proof that Weygant and Petitioner conspired to and actually did kill Pendino. (See id. at 3339-40 (referencing testimony “concerning [Petitioner] and [Weygant] discussing concerns over their fingernails and the destruction of certain clothing items” and arguing that “[e]ommon sense dictates that you would only make those statements if you, in fact, committed murder”); id. at 3361 (arguing that “Weygant indicated to [Ferretti] ... that he slept over at [Petitioner’s] house the night of [the murder] .... [and] [a]dmitted to her ... [that they] went to [the victim’s] house[, they] wacked him[, they] hit him with a baseball bat[, and they] killed him,” and arguing that “[t]hose statements are corroborated by [Weygant], himself, in [the grandjury testimony] in evidence”); id. at 3381 (reminding the jury that “Fer-retti told you ... [that Weygant] stated he slept over at [Petitioner’s] house[, then t]hey went over [and] picked up somebody in the city .... [and] transferred] the body to the [car],” and asserting that “[t]here is further corroboration [for this account] in the grand jury minutes as to why [Weygant] would do this,” namely that “he was friends with [Petitioner] for about ten years”); id. at 3383 (“[Y]ou know from [Weygant’s] own words that this was part of a conspiracy. [Petitioner] and [Weygant] were speaking about who the informant was a lot. They were having constant conversations about that. The fact that they were having those constant conversations about who the informant was and about the marijuana arrest corroborates [Ferretti’s] testimony that [Weygant] was [Petitioner’s] partner or at least co-conspirator in the marijuana business.”); id. at 3415 (“[Y]ou know [Petitioner] discussed all of this with [Weygant] by [Weygant’s] own admissions. They were trying to figure out who the informant was, who bought marijuana, because [Petitioner] was selling the marijuana out of his house on that day and they were going through the list of people that were there. [Weygant] was there. The fact that [Wey-gant] is there at [Petitioner’s] house certainly corroborates [Ferretti’s] testimony that he was involved in the marijuana business.”); id. at 3420, 3423 (telling the jury that “[y]ou also know that it was a planned conspiracy to commit murder,” and “[y]ou know this in part from [Ferretti’s] testimony,” and “the corroboration from what [Ferretti] told you comes from [Weygant’s grandjury testimony]”); id. at 3444 (“[Weygant] tells [Ferretti] there I was at [Petitioner’s] house the night before we went over and picked up my friend in the city. We went to [the victim’s] house. We killed him with a baseball bat, transferred the body to [a car] and I buried him and I’m the only one who knows where he is.”); id. at 3450 (characterizing Ferretti’s testimony as indicating that “[s]he thought [Weygant and Petitioner] were not capable of this and she learned otherwise and you [the jury] learned otherwise, that they are guilty”).)

Petitioner’s trial counsel objected twice to the use of Weygant’s grandjury testimony during the summation. First, after the prosecutor read a section of the transcript to suggest that Weygant drove Petitioner’s car the day after the murder, trial counsel objected and claimed that “the jury ha[d] been misled” because the prosecutor neglected to read another part of the transcript undermining that interpretation. (See id. at 3362-63.) The trial court subsequently struck the prosecutor’s reading of the transcript from the record and instructed the jury that they should draw their own inferences or conclusions from the evidence even where the prosecutor suggests particular inferences or conclusions. (See id. at 3369.) Second, trial counsel raised a similar objection to the prosecutor’s suggested inference that Weygant’s grandjury testimony proved that Weygant “knew or believed incorrectly that the informant was [the victim],” even though other parts of the testimony suggested that Weygant was not so sure. (Id. at 3384.) Trial counsel specifically asked the trial court to instruct the jury to re-read the transcript during deliberations, (see id. at 3387-88), and to instruct the jury that the prosecutor’s statements were only an “interpretation” of the transcript that should merely “guide[ ]” them during deliberations, (see id. at 3389). After an adjournment, where trial counsel was “able to reflect on [the objection],” trial counsel then expanded the scope of his objection:

MR. OSTRER: [T]here is an issue that requires some remediation by the Court and that is [that the grandjury testimony is] unlike any of the other testimony in the case....

THE COURT: It is not subject to cross examination.

MR. OSTRER: Not only that, your Honor, but [the prosecutor] was the only one present and when he places it in the first person [sic ]. I’ve asked this question of [Weygant] at the grand jury. The jurors know that [the prosecutor] was present at the grand jury. He’s the only real witness other than [Weygant] to those proceedings. It does carry a little bit additional weight when [the prosecutor] mischaracterizes or omits further questions from that testimony. I do believe a curative instruction is required to avoid any sense among the jurors that [the prosecutor] would become effectively an unsworn witness by saying I asked this question. This is what I perceive the answer to be. I think that is implied when [the prosecutor] characterizes grand jury testimony. Our petit jurors weren’t there. We weren’t there. [Petitioner] wasn’t there and there is no cross examination of [Wey-gant] in that respect. I think we need to tread very carefully on areas where [the prosecutor] reads out of context certain questions or fails to read that ensuing question. As your Honor recognized, there is a clear alternate interpretation to what [the prosecutor] attributed to the grand jury testimony. We already have that on the record. I think the court has recognized that and I think that needs to be conveyed to the jury.

THE COURT: Do you have a selected curative instruction you’d like me to give?

MR. OSTRER: I would like something on the order that [the prosecutor’s] recollection of what the grand jury testimony is, is not binding on them. If they have a question, they should refer to the actual transcript.

(Id. at 3890-92.) After a further discussion over the proposed instruction, the trial court agreed to instruct the jury to draw their own inferences and conclusions based on the evidence, (see id. at 3393-94, 3396), and it did so instruct them, (see id. at 3399^00).

The jury convicted Petitioner of one count of Murder in the Second Degree, under N.Y. Penal Law § 125.25(1), one count of Conspiracy in the Second Degree, under N.Y. Penal Law § 105.15, and one count of Conspiracy in the Fifth Degree, under N.Y. Penal Law § 105.05(1). (R & R 1.) On September 13, 2000, Justice Berry sentenced Petitioner to concurrent indeterminate terms of twenty-five years to life on the first count, eight-and-one-third to twenty-five years on the second count, and one year on the third count. (Id.; see also Pet. ¶¶ 2-3.)

D. Direct Appeal and Collateral Attack

Petitioner filed a notice of appeal, but before the appeal was deemed fully perfected, initial appellate counsel (“Habeas Counsel”), who later returned as habeas counsel, was suspended from legal practice. (See Pet’r’s Reply Mem. at 1 n. 1.) Subsequent appellate counsel was appointed, but Petitioner then replaced them with Mssrs. Isseks and Smith (“Direct Appellate Counsel”), whom the Appellate Division approved to perfect the appeal on February 19, 2004. (Pet. ¶ 7.) Direct Appellate Counsel adopted the appellate brief that Habeas Counsel had previously prepared, in which they asserted claims based on alleged prosecutorial misconduct, discovery violations, the trial court’s rulings on certain cross-examination issues and a circumstantial-evidence charge, and ineffectiveness of trial counsel. (R & R 4.) On December 29, 2004, the Appellate Division affirmed Petitioner’s conviction, finding that the trial court had properly issued a protective order regarding the taped telephone conversations, and that Petitioner’s remaining claims were without merit. See People v. Chrysler, 13 A.D.3d 550, 787 N.Y.S.2d 365 (2004). Petitioner then sought leave to appeal to the Court of Appeals, which request was denied on February 18, 2005. See People v. Chrysler, 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 (2005).

On May 2, 2005, Direct Appellate Counsel filed a motion to vacate Petitioner’s conviction pursuant to New York Criminal Procedure Law § 440.10 (“the § 440.10 Motion”), on the grounds that trial counsel had been constitutionally ineffective by declining to advise Petitioner to accept the trial court’s offer to sever Petitioner’s trial from that of Weygant. (Pet. ¶ 14; see also Resp’t’s Ex. 42 (§ 440.10 Motion).) In the § 440.10 Motion, Direct Appellate Counsel also claimed that the admission and use of Weygant’s statements to the Grand Jury violated Petitioner’s Confrontation Clause rights, as enunciated in the Supreme Court’s intervening decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Direct Appellate Counsel had not raised this Confrontation Clause argument in their direct-appellate brief or in their application for leave to the Court of Appeals. (Pet. ¶ 15.) Justice Berry denied the § 440.10 Motion on September 30, 2005, finding that, inter alia, Petitioner had made an intelligent and voluntary waiver of his Confrontation Clause rights, and that Petitioner should have raised his Confrontation Clause argument on direct appeal. (Id. ¶ 17; see also Resp’t’s Ex. 45 (Decision and Order denying § 440.10 Motion).) Appellate counsel sought leave to appeal the denial to the Appellate Division, which denied the request on November 30, 2005. (R & R 4.)

Approximately one year later, after resuming representation, Habeas Counsel filed a Coram Nobis Petition on Petitioner’s behalf, arguing that by failing to raise the Confrontation Clause issue on direct appeal, Direct Appellate Counsel had provided constitutionally deficient representation. (Id.) Habeas Counsel signed and mailed the Coram Nobis Petition on October 16, 2006, and the District Attorney’s Office apparently received the Coram No-bis Petition on October 18, 2006, but the Clerk of the Appellate Division did not file the Coram Nobis Petition until October 27, 2006. (R & R 4-5; see also Obj. unnumbered 1-2.) The Appellate Division denied the Coram Nobis Petition on February 6, 2007. See People v. Chrysler, 37 A.D.3d 486, 827 N.Y.S.2d 879 (2007). Habeas Counsel then sought leave to appeal to the Court of Appeals, which request was denied on June 15, 2007. See People v. Chrysler, 9 N.Y.3d 841, 840 N.Y.S.2d 768, 872 N.E.2d 881 (2007). Petitioner claims that the Court of Appeals’ denial of leave was served on July 20, 2007. (Pet. ¶ 26.)

Habeas Counsel sent the instant Petition on July 27, 2007, via overnight delivery, to the District Court for the Western District of New York. (See Sussman Aff. ¶ 5 (Dkt. No. 41); id. Exs. 2, 3.) The Clerk then stamped and filed the Petition on August 8, 2007. (See Pet.) On August 21, 2007, District Judge David Larimer ordered the case transferred from the Western District of New York to the Southern District of New York. (See id.) The Court then referred the Petition to Magistrate Judge Smith, who recommends that the Petition be dismissed as untimely.

II. Discussion

A. Standard of Review

1. Review of a Magistrate Judge’s Report and Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion “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); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge’s report and recommendation. The objections must be “specific” and “written,” Fed.R.Civ.P. 72(b)(2), and must be made “[wjithin 14 days after being served with a copy of the recommended disposition,” id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)-(F), see Fed.R.Civ.P. 6(d), for a total of seventeen days, see Fed.R.Civ.P. 6(a).

Where a party submits timely objections to a report and recommendation, as Petitioner has done here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court “may adopt those portions of the ... report [and recommendation] to which no ‘specific written objection’ is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law.” Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.2008) (quoting Fed.R.Civ.P. 72(b)(2)).

2. Review of a Petition for Habeas Corpus

To receive the writ of habeas corpus from a federal district court, a petitioner must comply with the strict requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

First, AEDPA establishes an “exhaustion” requirement: To be entitled to habeas relief, a petitioner must have exhausted his or her federal constitutional claims in state court. See 28 U.S.C. § 2254(b)(1)(A); see also Sepulveda v. New York, No. 08-CV-5284, 2013 WL 1248379, at *2 (S.D.N.Y. Mar. 26, 2013) (“[UJnexhausted claims generally may not be considered on habeas review.”); Rosas v. Artus, No. 05-CV-8440, 2013 WL 499610, at *4-5 (S.D.N.Y. Jan. 29, 2013) (discussing AEDPA’s exhaustion requirement). To satisfy the exhaustion requirement, a petitioner must have fairly presented the constitutional dimensions of his or her claims to the state courts. See Chellel v. Miller, No. 04-CV-1285, 2008 WL 3930556, at *4 (E.D.N.Y. Aug. 21, 2008) (“A petitioner must present the substance of a habeas corpus claim to the state court, including its federal constitutional dimension, before a federal habeas court can consider it.”). See generally Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir.1982) (enumerating “the ways in which a state defendant may fairly present to the state courts the constitutional nature of [a] claim”). This requires a petitioner to have presented to the state court “all of the essential factual allegations” and “essentially the same legal doctrine” asserted in the federal ha-beas petition. Daye, 696 F.2d at 191-92. Moreover, the petitioner must have either appealed his or her conviction to the highest state court, or utilized available state methods for collaterally attacking the conviction and appealed any denial of the collateral attack to the highest state court. See Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.2005) (explaining that each claim for habeas relief must have been presented to the highest state court to be exhausted); Haddock v. Second Appellate Court, No. 10-CV-3442, 2013 WL 3640150, at *4 (S.D.N.Y. July 15, 2013) (“A habeas petitioner satisfies the exhaustion requirement if he [or she] has presented his [or her] claims for post-conviction relief to the highest state court.”).

Second, AEDPA establishes a strict limitations period for habeas claims, according to which a petitioner has one year to file a petition. See 28 U.S.C. § 2244(d)(1). This limitations period begins to run from the latest of the following events:

(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.

28 U.S.C. § 2244(d)(1). Pursuant to 28 U.S.C. § 2244(d)(1)(A), a judgment becomes final “only after the denial of certiorari or the expiration of time for seeking certiorari,” Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001) — in the latter case, ninety days after a decision by the New York Court of Appeals, see Walker v. Graham, 955 F.Supp.2d 92, 104 (E.D.N.Y.2013) (explaining that under AEDPA, “the one-year period [does] not begin to run until 90 days after the Court of Appeals denie[s] [a petitioner’s] direct appeal” (emphasis removed)). During the course of the one-year limitations period, if a petitioner files a collateral attack or seeks postconviction review, the statute of limitations is tolled during the time that claim is “pending.” See 28 U.S.C. § 2244(d)(2); see also Diaz v. Bellnier, No. 08-CV-4009, 2012 WL 4447357, at *5 (E.D.N.Y. Sept. 24, 2012) (explaining that “a properly filed” collateral attack on a judgment tolls the limitations period, but does not cause “the one-year grace period to run anew”).

The limitations period may be equitably tolled, as well, if the petitioner can show that he or she was prevented from filing an application in a timely fashion due to “extraordinary circumstances,” and that he or she acted with reasonable diligence during that time period. See McQuiggin v. Perkins, — U.S.-, 133 S.Ct. 1924, 1931, 185 L.Ed.2d 1019 (2013) (explaining that “a [habeas] petitioner is entitled to equitable tolling only if he [or she] shows (1) that he [or she] has been pursuing his [or her] rights diligently, and (2) that some extraordinary circumstance stood in his [or her] way and prevented timely filing” (first alteration in original) (quoting Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010))). A petitioner separately may seek “an equitable exception to [AEDPA’s limitations period], not an extension of the time statutorily prescribed,” by making a “credible showing of actual innocence.” Id. at 1931-35 (emphasis in original).

Third, the “independent and adequate state ground doctrine” precludes “a federal court sitting in habeas” from reviewing “a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007) (emphasis in original) (internal quotation marks omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)); see also Downs v. Lape, 657 F.3d 97, 101 (2d Cir.2011) (“We therefore will not review questions of federal law presented in a habeas petition when the state court’s decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.” (internal quotation marks omitted)). “Independent and adequate state law grounds preventing federal review include violations of state procedural rules — for example, the failure to comply with a state’s filing deadline.” Richardson, 497 F.3d at 217 (citation omitted). “An independent and adequate state ground for rejecting a federal claim does not bar federal court review of the claim if the petitioner demonstrates ‘cause and actual prejudice’ for failing to comply with the state rule.” Downs, 657 F.3d at 101 n. 1. Additionally, in an “extraordinary case,” a court may review a procedurally defaulted claim in order to avoid a “fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (noting that this exception is “explicitly tied” to the petitioner’s innocence); Doe v. Menefee, 391 F.3d 147, 161 (2d Cir.2004) (explaining that in “extremely rare” cases, “a petitioner may use his claim of actual innocence as a ‘gateway,’ or a means of excusing his procedural default, that enables him to obtain review of his constitutional challenges to his conviction”).

Finally, AEDPA establishes the relevant standard of review for habeas petitions:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S.C. § 2254(d)(1). Thus, a habeas petitioner is entitled to habeas corpus relief only if he or she can show that “the state court ‘unreasonably’ applied law as established by the Supreme Court in ruling on [Petitioner's claim, or made a decision that was ‘contrary to’ it.” Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir.2008) (quoting 28 U.S.C. § 2254(d)(1)). “While ‘the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones’ is somewhat unclear, ‘it is well-established in [the Second] Circuit that the “objectively unreasonable” standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.’ ” Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir.2007) (brackets omitted) (quoting Torres v. Berbary, 340 F.3d 63, 69 (2d Cir.2003)). Moreover, a state court’s determination of factual issues is presumed correct, and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir.2006).

B. Analysis

1. Timeliness

a. AHDPA’s One-Year Limitations Period

As noted, Magistrate Judge Smith recommended that the Petition be dismissed as untimely. Pursuant to § 2244(d)(1), “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus.” 28 U.S.C. § 2244(d)(1). This period “shall run from ... the date on which the [state court] judgment [resulting in conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). However, under § 2244(d)(2), “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted toward any period of limitation under this subsection.” Id. at § 2244(d)(2). Thus, to determine whether the Petition was timely filed, the Court must calculate the number of days that passed in the limitations period, while being careful to exclude any days that should not be counted against the period pursuant to § 2244(d)(2). See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (“We therefore hold that proper calculation of Section 2244(d)(2)’s 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”).

i. The Relevant Dates

There are four operative events that determine whether the Petition was timely filed: (1) the Appellate Division’s denial of leave to appeal the trial court’s denial of Petitioner’s § 440.10 Motion; (2) the filing of Petitioner’s Coram Nobis Petition; (3) the Court of Appeals’ denial of leave to appeal the Appellate Divisions’ denial of the Coram Nobis Petition; and (4) the filing of the Habeas Petition itself. Of these four events, the dates assigned to the first and third are not in dispute, as it is clear that the Appellate Division denied leave to appeal Petitioner’s § 440.10 Motion on November 30, 2005, (see R & R 4), and that the Court of Appeals denied Petitioner’s leave to appeal the denial of his Coram Nobis Petition on June 15, 2007, see People v. Chrysler, 9 N.Y.3d 841, 840 N.Y.S.2d 768, 872 N.E.2d 881 (2007).

But the Parties do dispute the dates assigned to the second and fourth events— i.e., the filing dates of the Coram Nobis Petition and the Habeas Petition. For each petition, Respondent argues that the filing date should be the date that the petition was deemed “filed” by the state and federal court, respectively. (See Resp’t’s Mem. at 57-59.) This would result in a filing date of October 27, 2006, for the Coram Nobis Petition and a filing date of August 8, 2007, for the Habeas Petition. Id. In response, Petitioner argues that the filing date should be the date that the petition was received by the court. (See Pet’r’s Reply Mem. at 9-10; Obj. at unnumbered 1-3.) In the absence of conclusive evidence of the dates on which the courts actually received the petitions, Petitioner asks the Court to deem the Coram Nobis Petition filed on October 18, 2006 (the day Respondent admits it received a copy of the petition), and to deem the Habeas Petition filed on July 30, 2007 (the day the Petition presumably arrived after Petitioner sent it via overnight mail on Friday, July 27, 2007). Id.

Petitioner is correct in that, under both federal and New York law, the filing date for a document submitted by litigants with the assistance of counsel— including prisoners — is the date on which the document is received by the clerk of the court. See Noble v. Kelly, 89 F.Supp.2d 443, 450 (S.D.N.Y.2000) (“As a general rule, a petition for habeas corpus is deemed filed for statute of limitations purposes when it is received by the clerk of the district court.”), aff'd, 246 F.3d 93 (2d Cir.2001); Grant v. Senkowski, 95 N.Y.2d 605, 721 N.Y.S.2d 597, 744 N.E.2d 132, 133 (2001) (“The term ‘filing’ is statutorily defined as ‘the delivery of the ... notice of petition ... to the clerk of the court (quoting N.Y. C.P.L.R. § 304) (first alteration in original)). With regard to the Coram Nobis Petition, New York courts “recognize that a presumption exists that the actual filing date is the date [the materials] are stamped filed by the County Clerk.” Resch v. Briggs, 51 A.D.3d 1194, 856 N.Y.S.2d 317, 319 (2008). “However, extraordinary circumstances may exist establishing that the actual filing of these documents occurred on an earlier date than that reflected on the stamp and, if clear and unequivocal evidence exists establishing that fact, it will serve to rebut the presumption.” Id.

Here, Petitioner succeeds in rebutting the presumption. First, the Court notes that the Petition was dated “October 16, 2006,” (see Pet.), and Habeas Counsel avers, in a sworn Affirmation, that “[his] office mailed, postage pre-paid, the Coram Nobis Petition” to the state court on that same date, (see Sussman Aff. ¶ 2). Second, Habeas Counsel claims, again under oath, that in “more than 15 years of experience with like mailings from Orange County, it is highly unusual that such mail would not arrive at the [Second Department] Courthouse in Brooklyn by the second day following mailing,” and that he “cannot think of a single instance where that has occurred.” (Id. ¶ 3.) Finally, Petitioner claims, and Respondent agrees, that Respondent received a copy of the Coram Nobis Petition on October 18, 2006, two days after it was mailed on the same day as the officially filed Petition. (See id. ¶ 2; Resp’t’s Mem. at 57). These facts lead the Court to conclude that the Coram Nobis Petition was received by the state court before the presumptive date of October 27, 2006. Cf. Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.1973) (refusing to consider an appeal to be time barred where “a strong possibility exist[ed]” that the notice was received before the stamped filing date).

Having rebutted the presumption, Petitioner asks the Court to deem the Coram Nobis Petition filed on October 18, 2006, the day on which Respondent received its copy of the Petition. (See Obj. at unnumbered 2; Pet’r’s Reply Mem. at 10.) The Court, however, feels that October 19, 2006, would be a more appropriate date. First, Petitioner admits that he “reasonably expected [that the Coram No-bis Petition] would be received within two, or, at the most, three days.” (Obj. at unnumbered 1.) Second, where the actual date of receipt is unknown, “[t]here is a presumption in [the Second Circuit] that a mailed document is received three days after its mailing when the person who mailed the document followed regular office practice and procedure or has actual knowledge of having mailed the document.” Isaacson v. N.Y. Organ Donor Network, 405 Fed.Appx. 552, 553 (2d Cir.2011) (citations omitted); see also Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.1996) (“Normally it is assumed that a mailed document is received three days after its mailing.”). Although courts frequently apply this presumption, derived from Federal Rule of Civil Procedure 6(d), in Title VII cases with respect to a plaintiffs receipt of a right-to-sue letter, see, e.g., Castro v. United Sec. Inc., No. 10-CV-6152, 2011 WL 4916402, at *2 (S.D.N.Y. Oct. 17, 2011), courts have also applied the presumption in AEDPA cases, see, e.g., Wright v. Marshall, No. 05-CV-2280, 2005 WL 1861633, at *2 (E.D.N.Y. Aug. 4, 2005) (concluding that a habeas petition “was timely filed” after “applying the usual presumption that a mailed document is received three days after it is sent” where the petition was filed on May 2, 2005, but the filing deadline was April 29, 2005). Given the three-day presumption and Petitioner’s “reasonabl[e] expectation]” that the Coram Nobis Petition would be filed “within ... three days,” (see Obj. at unnumbered 1), the Court holds that the Coram Nobis Petition was filed on October 19, 2006, three days after it was mailed.

With regard to the Habeas Petition, there is also a presumption that such a petition was received by the federal court on the day it was stamped “filed.” See In re Piper Aircraft Distribution Sys. Antitrust Litig., 551 F.2d 213, 216 n. 7 (8th Cir.1977) (“[I]t is open to an appellant to prove that [a notice of appeal was received] on a date earlier than that recorded on the notice of appeal.”). Here, the record supports Petitioner’s objection that the Clerk received the Petition on July 30, 2007 — over a week before the Clerk stamped it “filed” on August 7, 2007. First, Habeas Counsel has stated, in a sworn Affirmation, that he sent the Petition to the Clerk of the District Court for the Western District of New York by “overnight mail” on July 27. (See Sussman Aff. ¶ 5.) Second, Habeas Counsel has also submitted what he avers is a copy of a letter, dated July 27, 2007, and captioned “overnight mail,” which he sent to the Clerk of the Western District along with the Habeas Petition, and a DHL Receipt, which indicates that counsel sent the Petition to the Clerk on July 27, 2007, for “Next Day” delivery. (Id. Exs. 2, 3.) Third, in his Affirmation, Habeas Counsel describes that he sent, along with the Petition, an application for admission to the bar of the Western District of New York; that shortly thereafter, the Western District Clerk informed him that the Petition would be filed “directly”; and that on August 1, he was sent additional forms regarding his admission to the Western District, which he filled out and subsequently submitted. (Id. ¶¶ 6-7.) Respondent maintains that the Petition was filed on August 7, 2007, (see Resp’t’s Mem. at 58 & n. 21), but does not dispute Petitioner’s factual allegations.

“Under general New York law ..., the Second Circuit has indicated that mailing a letter creates a presumption that the addressee received it.” Bronia, Inc. v. Ho, 873 F.Supp. 854, 859 (S.D.N.Y.1995) (citing Meckel v. Cont’l Res. Co., 758 F.2d 811, 817 (2d Cir.1985)). Where a party submits sworn statements and evidence indicating that a mailing was sent via overnight delivery, and where the opposing party fails adequately to rebut this evidence, courts may find that the mailing was delivered the day after it was sent. See S.E.C. v. Batterman, No. 00-CV4835, 2002 WL 31190171, at *5-6 (S.D.N.Y. Sept. 30, 2002) (finding that an overnight mailing was delivered the next day where defendant disputed receipt but plaintiff offered a sworn declaration and Federal Express records confirming the mailing and delivery dates). Moreover, the Western District, where the Habeas Petition was originally filed, applies a one-day presumption, similar to the three-day presumption for regular mail, to mail sent via overnight delivery. See W.D.N.Y. R. 5.1(g) (“Where a period of time ... is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period.”).

Particularly persuasive here are Habeas Counsel’s statements indicating that he included with the habeas petition “an application for admission to the WDNY,” and that, “[b]y letter dated August 1, 2007, [he] was sent some additional materials to file [sic] out before [his] application for admission could be acted upon.” (Sussman Aff. ¶¶ 6-7.) Not only does this support Petitioner’s argument that the Petition was received before August 7-indeed, for the Clerk to respond on August 1, the Petition must have been received on or before that day-it also places this case in the line of cases where a party attempted to file a court document on time but was thwarted by ministerial or procedural obstacles unattributed to the filing party that delayed the time between receipt and filing. See, e.g., Parissi v. Telechron, Inc., 349 U.S. 46, 46-47, 75 S.Ct. 577, 99 L.Ed. 867 (1955) (per curiam) (reversing dismissal of appeal as untimely where the clerk received but refused to file a notice of appeal until petitioner paid the filing fee). As the Second Circuit recognized in Contino v. United States, 535 F.3d 124 (2d Cir.2008) (per curiam),

[Federal Rule of Civil Procedure] 5(d)(4) ... states, ‘The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.’ Moreover, Rule 83(a)(2) prohibits the enforcement of a local rule regulating the form of a filing if its enforcement would cause a party to lose a right and the party’s non-compliance with the rule was not willful.

Id. at 127 (quoting Fed.R.Civ.P. 5(d)(4)) (citing Fed.R.Civ.P. 83(a)(2)). In that case, the court ultimately held that the appeal was timely because, where the appellant “attempted to file [a notice of appeal electronically] within the required time-frame,” but the notice was “rejected by the clerk for failure to comply with a local rule” requiring paper submissions, the appellant “should not lose his right to appeal because of an error in the form of the notice of appeal.” Id. at 126-27. Here, Habeas Counsel, who had not been admitted to practice in the Western District, was apparently attempting to comply with Local Rule 83.2, which specifies that “[a]n attorney who is not a Member of the bar of this Court may appear in an action only if he or she applies to become pro hoc vice counsel.” W.D.N.Y. R. 83.2(a)(1).

Thus, in line with Contino, and in light of Habeas Counsel’s sworn affirmations, the Court finds that the Petition was received by the Clerk before the filing date of August 7, 2007. Furthermore, in light of record evidence indicating that the Petition was sent via overnight mail on July 27, and in consideration of the one-day presumption for overnight mail recognized by courts and the Western District’s Local Rules, the Court holds that the Petition was received, and thus was filed for statute-of-limitations purposes, on July 30, 2007.

ii. The Limitations-Period Calculation

As discussed above, habeas petitions are subject to a “1-year period of limitation,” but “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted” toward that period. 28 U.S.C. § 2244(d)(l)-(2). Because Petitioner’s judgment became final in 2005, but Petitioner did not file the Petition until 2007, the outcome of the timeliness issue hinges on how much time is excluded from the limitations-period calculation pursuant to § 2244(d)(2). And, as will become clear, because the timeliness issue in this case is so close, it is necessary to determine whether three of the four dates discussed above — namely, the two final judgment dates and the date Petitioner filed his Co-ram Nobis Petition — count toward the limitations period.

With regard to filing dates, the Supreme Court and the Second Circuit both appear to consider the date on which a post-trial collateral challenge is filed to be excluded from the limitations period. See Artuz v. Bennett, 531 U.S. 4, 9, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (“If ... an application is erroneously accepted by the clerk of a court ... it will be pending, but not properly filed ” (first emphasis added)); Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999), aff'd sub nom. Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (holding that an application is “ ‘pending’ from the time it is first filed ” (emphasis added)); see also Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir.2005) (“[T]he term ‘properly filed’ [in § 2244(d)(2) ] fixes the date that starts the tolling of the AEDPA statute of limitations .... ” (emphasis added)); accord Nichols v. Brown, No. 09-CV-6825, 2012 WL 555043, at *2 (S.D.N.Y. Feb. 21, 2012) (“[T]he limitations period was tolled on November 5, 2007, when petitioner] filed his coram nobis petition.”); Wilkins v. Kirkpatrick, No. 06-CV2151, 2009 WL 3644082, at *7 (S.D.N.Y. Nov. 4, 2009) (“AEDPA’s one year statute of limitations is tolled from the date a petitioner files his or her 440.10 motion....”); Collins v. Artus, 496 F.Supp.2d 305, 312 (S.D.N.Y.2007) (“[T]he statute of limitations is tolled from the date the motion is filed.... ”).

Moreover, the Second Circuit appears not to exclude from the limitations period the date on which a state court files a final judgment resolving the pending motion or petition. As the Second Circuit has explained, because “[w]e held in Geraci [v. Senkowski, 211 F.3d 6 (2d Cir.2000),] that statutory tolling for the purposes of AED-PA ends with the ‘filing’ of the state court’s final order .... a motion ceases to be ‘pending’ for the purposes of AEDPA on the date of filing.” Saunders v. Senkowski 587 F.3d 543, 549 (2d Cir.2009) (emphasis added); see also Fernandez, 402 F.3d at 116 (“[T]he term ‘pending’ marks the end point [of the tolling], when the state court ultimately decides the ... case.”). This language appears to instruct courts not to exclude the day the final order was filed from the limitations period, because the state court review is not “ ‘pending’ ... on the date of filing.” Saunders, 587 F.3d at 549. And, in fact, this appears to be the implied practice of the Second Circuit. See, e.g., Pratt v. Greiner, 306 F.3d 1190, 1195 (2d Cir.2002) (calculating a tolling period of ninety-five days from March 19, 1998, to June 22, 1998, and a period of 188 days from August 27,1998, to March 3,1999, necessarily excluding from the tolling period the date state-court review concluded); Hizbullahankhamon v. Walker, 255 F.3d 65, 69 (2d Cir.2001) (calculating a tolling period of 205 days from January 28, 1997 (first co-ram-nobis-petition filing date), to August 21, 1997 (first coram-nobis-petition final judgment date), and a tolling period of 246 days from June 17, 1998 (second coram-nobis petition filing date), to February 18, 1999 (second coram-nobis-petition final judgment date)).

But a review of other higher court cases calls into question both of these propositions. For example, in Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007), the Supreme Court counted the day on which the petitioner filed an application for state post-conviction relief against the limitations period when it noted that “[a]ll but one day of the limitations period had lapsed during the 364 days between the time [petitioner’s] conviction became final [on January 20, 1998] and when he filed for state postcon-viction relief [on January 19, 1999].” Id. at 330, 127 S.Ct. 1079. Similarly, in Smith v. McGinnis, 208 F.3d 13 (2d Cir.2000), the court counted the day petitioner filed his coram nobis petition against the limitations period when it noted that the period “ran for 364 days, [from April 24, 1996,] until [April 23, 1997, when petitioner] filed the coram nobis petition.” Id. at 16. And the court implicitly counted the filing day against the limitations period twice in Bethea v. Girdich, 293 F.3d 577 (2d Cir.2002) (per curiam), where it held that “[272] days elapsed between the date [petitioner’s] conviction became final (April 9, 1999) and the date [petitioner] moved to file a late notice of appeal (January 6, 2000),” and that “[eighteen ... days [of the limitations period] elapsed ... between the denial of that motion (on March 13, 2000), and the filing of [petitioner’s] motion for reargument (on March 30, 2000).” Id. at 579.

By contrast, in other cases, the Second Circuit has implicitly excluded the final judgment day from the limitations period. In Geraci v. Senkowski, 211 F.3d 6 (2d Cir.2000), superseded by statute on other grounds, as stated in Dillon v. Conway, 642 F.3d 358 (2d Cir.2011) (per curiam), the Second Circuit twice endorsed the district court’s tolling-period calculation, which explicitly held that “the dates on which the relevant decisions with respect to the post-conviction motions are rendered” are not “counted towards the statute of limitations.” Geraci v. Senkowski, 23 F.Supp.2d 246, 253 (E.D.N.Y.1998), aff'd, 211 F.3d 6 (2d Cir.2000). First, the court noted that the limitations-period clock “began to run again on August 26, 1997, when Geraci was denied leave to appeal the Appellate Division’s denial of his section 440.20 motion.” Geraci 211 F.3d at 9. In the context of the district court’s opinion, this language is somewhat confusing, because August 26 was “the day after the petitioner was denied leave to appeal,” Geraci 23 F.Supp.2d at 253 (emphasis added), not, as the Second Circuit described it, the day “when [the petitioner] was denied leave to appeal,” Geraci 211 F.3d at 9 (emphasis added). Second, the court noted that “[t]he coram nobis petition was denied on February 17, 1998 and the time clock started to run again .... until February 24, 1998, the day the [habe-as] petition was filed, a total of seven days.” Geraci 211 F.3d at 9. This calculation of “seven days” indicates that the court necessarily included either the date the coram nobis petition was denied or the date the habeas petition was filed. Upon consideration, it must have been the latter, because in determining whether a habeas petition is timely filed, a court must include the petition filing date within the limitations period. See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir.2000) (holding that, where the limitations period “[had run] for 364 days,” petitioner “had one day remaining ... in which to file the ... habeas petition”).

Geraci’s primary holding — that a coram nobis petition filed in New York state court ceases to be pending when the Appellate Division denies it — has been expressly affirmed at least twice, and in neither case did the court discuss the district court’s decision to exclude the day the order was filed from the limitations period. See Saunders, 587 F.3d at 549 (rejecting petitioner’s arguments as “precluded by our holding in Geraci .... that statutory tolling for the purposes of AEDPA ends with the ‘filing’ of the state court’s final order”); Hizbullahankhamon, 255 F.3d at 71 (responding to the question of “when [petitioner’s coram nobis] motions ceased to be pending” by noting that “Geraci compels us to answer that” the motions “ceased to be pending” on the dates on which the Appellate Division denied them). Furthermore, in Dillon v. Conway, 642 F.3d 358 (2d Cir.2011) (per curiam), the Second Circuit discussed, without criticism, the Geraci district court’s holding that the limitations-period clock began running the day after the state court review became final. See id. at 360-61 (noting that the district court in Geraci held “that ‘[t]he [AEDPA] statute of limitations began running ... the day after the petitioner was denied leave to appeal’ ” (emphasis and alterations in original)).

Taken together, these opinions provide the Court with somewhat conflicting guidance as to whether either the filing date or the final judgment date or both count towards the limitations period. And in the context of this case, the discussion is much more than academic — indeed, it is potentially outcome determinative — because, as discussed below, the Petition is timely only if the Court excludes both the Coram No-bis Petition filing day and both final judgment days.

Petitioner’s conviction became final on May 19, 2005, ninety days after the Court of Appeals denied Petitioner’s request for leave to appeal the Appellate Division’s denial of his direct appeal on February 18, 2005. See Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir.2000) (holding that a conviction became final “when the ninety-day period to seek direct review from the ... Supreme Court by way of certiorari expired”). However, because Direct Appellate Counsel filed Petitioner’s § 440.10 Motion on May 2, 2005, the finalization of the conviction did not start the limitations-period clock on May 19. See Wilkins v. Kirkpatrick, No. 06-CV-2151, 2009 WL 3644082, at *7 (S.D.N.Y. Nov. 4, 2009) (“AEDPA’s one year statute of limitations is tolled from the date a petitioner files his or her 440.10 motion until the date the Appellate Division denies the petitioner leave to appeal that decision.”). Instead, the first relevant day for calculating the limitations period is November 30, 2005, when the Appellate Division denied leave to appeal the trial court’s denial of Petitioner’s § 440.10 Motion. See Walker v. Graham, 955 F.Supp.2d 92, 102 (E.D.N.Y.2013) (“The 440 Motion ceased to be ‘pending’ under [§ 2244(d)(2) ] once the Appellate Division denied leave to appeal....”). The first day that counted against the limitations period was thus either November 30, the day the order was filed, or December 1, the day after.

The limitations-period clock then continued to run until October 19, 2006, when (as the Court has determined) Petitioner filed his Coram Nobis Petition. See Nichols v. Brown, No. 09-CV-6825, 2012 WL 555043, at *2 (S.D.N.Y. Feb. 21, 2012) (“[T]he limitations period was tolled ... when petitioner] filed his coram nobis petition.”). The tolling per