MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Edmond Bostic, who is also known as "Kevin McKinnis," petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bostic challenges convictions arising out of a burglary committed on March 24, 1996, for which Bostic, a second violent felony offender, was sentenced to a 15-year prison term.

Respondent has moved to dismiss the petition on the ground that it was not filed within the applicable one-year limitations period. For the reasons set forth below, the motion is granted.

BACKGROUND

In the early morning hours of March 24, 1996, Edward Keough observed a man on the fire escape of his building at 295 Washington Avenue, Brooklyn, New York. When he saw the man enter Apartment 3G through a window, he contacted the police. When they responded, one officer observed Bostic exit the window of an apartment onto the fire escape, only to reenter the window when the office shined a flashlight on him and identified himself as a police officer. Police officers searched the apartment and found Bostic hiding under a pile of clothes in a back bedroom. Bostic was arrested, and the police recovered a bag from the fire escape containing a quantity of property. Bostic did not have permission to enter the apartment or to take the property that was recovered from the bag found on the fire escape.

Bostic was charged with one count of burglary in the second degree; one count of burglary in the third degree; one count of criminal trespass in the second degree; one count of criminal possession of stolen property in the fifth degree; and one count of criminal mischief in the fourth degree. On December 6, 1996, following a jury trial, Bostic was convicted of second-degree burglary and sentenced as a second violent felony offender to a term of imprisonment of 15 years.

On February 12, 1997, Bostic filed a pro se motion in the New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law section 440.10 ("section 440.10"), alleging fraud, improper and prejudicial conduct by the prosecutor and the police, Brady andRosario violations, and the falsification of documents. He sought relief on the ground that the person originally named as the resident and owner of the apartment and stolen property was different from the person who testified as to residency and ownership in the grand jury and at trial.

On April 7, 1997, the Supreme Court denied the motion. It held that Bostic's claims were procedurally barred because they arose from facts that appeared on the face of the record, and thus were susceptible to the appellate review that Bostic had yet to seek. The court also denied defendant's Rosario claim, finding that Bostic failed to show actual prejudice. Bostic sought leave to appeal the denial of the motion, and on June 25, 1997, leave to appeal was denied.

In February 1998, Bostic, through appointed appellate counsel William L. Ostar, Esq., filed an appellate brief in the Appellate Division, Second Department, claiming that the People's failure to turn overRosario material (an officer's memo book entries) until after defense counsel had made an opening statement and began cross-examination of the officer warranted a new trial. Bostic moved to strike his attorney's brief and sought permission to file a pro se brief. The Appellate Division denied the request to strike the brief filed by the attorney, but granted Bostic permission to file a supplementalpro se brief. In his pro se brief, filed in August 1998, Bostic raised the following claims: (1) his arrest was not based upon probable cause, and he was not properly advised of hisMiranda warnings; (2) the evidence was insufficient to prove his guilt of second-degree burglary, the trial court improperly charged the jury on second-degree burglary, and the trial court improperly admitted testimony about a torn window screen; (3) the trial court improperly admitted the 911 tape into evidence; and (4) he was denied the effective assistance of trial counsel.

On February 1, 1999, the Appellate Division unanimously affirmed the judgment of conviction. People v. Bostic, 685 N.Y.S.2d 450 (2d Dep't 1999). It held that Bostic was not prejudiced by the delayed disclosure of Rosario material, that he was afforded the effective assistance of counsel, and that his remaining contentions were, "for the most part, unpreserved for appellate review and, in any event, without merit." Bostic, 685 N.Y.S.2d at 451 (citation omitted).

By letter dated February 6, 1999, Bostic's counsel sought leave to appeal from the Appellate Division's decision to the New York Court of Appeals. The leave request asked the court to consider the claims raised in counsel's brief to the Appellate Division. By certificate dated June 25, 1999, a judge of the Court of Appeals denied leave to appeal.People v. Bostic, 93 N.Y.2d 966 (1999) (Levine, J.).

In pro se papers dated September 28, 1999, Bostic again moved in Supreme Court to vacate his judgment of conviction pursuant to section 440.10. That motion (the "second section 440 motion") was based on the grounds of prosecutorial misconduct and ineffective assistance of trial counsel. In a decision dated March 31, 2000, but docketed on April 12, 2000, the motion was denied. On May 8, 2000, Bostic sought leave to appeal from the denial of his second section 440 motion. On July 7, 2000, the Appellate Division denied leave to appeal.

Bostic attempted to obtain appeal to the Court of Appeals from the Appellate Division's July 7, 2000, order. However, such orders are not appealable under New York law, and those attempts were dismissed on August 22, 2000 (Kaye, C. J.), and September 20, 2000 (Wesley, J.).

The instant petition was filed on August 21, 2001. It raises the following claims: (1) Bostic's rights under the Fifth Amendment were violated because he was interrogated without having received aMiranda warning; (2) the prosecutor failed to turn overBrady material; (3) the prosecutor knowingly used perjured testimony of a witness who testified that he saw a person enter on apartment from the lire escape; and (4) defendant received ineffective assistance of trial counsel.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, created a one-year statute of limitations for petitioners to file for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). hi most cases, including this one, the one-year period runs from the date the state conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The state conviction becomes final for AEDPA purposes when the petitioner's time to seek direct review in the United States Supreme Court by writ of certiorari expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). In the instant case, that period expired 90 days after the New York Court of Appeals denied leave to appeal.Pratt v. Grenier, 306 F.3d 1190, 1195 n. 1 (2d Cir. 2002). Therefore, Bostic's judgment of conviction became final on September 23, 1999, 90 days from the June 25, 1999, denial of leave to appeal the Appellate Division's affirmance of Bostic's convictions.

Though properly filed applications for state post-conviction relief toll the limitations period, 28 U.S.C. § 2244(d)(2), they do not reset the period. Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000). Moreover, such applications toll the limitations period only so long as they remain pending. With respect to a section 440 motion, the limitations period is tolled from the time it is filed in the Supreme Court until the Appellate Division decides the motion or denies an application for leave to appeal from the denial of the motion. However, the tolling period does not include applications for post-conviction relief where review is no longer available under state law. Thus, since a denial by the Appellate Division of an application for a writ of error coram nobis may not be reviewed by the New York Court of Appeals, the tolling period ends with the denial, even if the defendant files an application for leave to appeal in the Court of Appeals.See Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001); Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000). Similarly, since the Appellate Division's denial of an application for leave to appeal the denial of a section 440 motion is not reviewable in the Court of Appeals, the tolling period ends with the Appellate Division's denial, even if the futile leave application is subsequently filed. See Jones v. Dep't of Com, 216 F.R.D. 237, 239 (E.D.N.Y. 2003); Bond v. Walsh, No. Ol-CV-0776, 2002 WL 460046, at *2 (E.D.N.Y. Feb. 12, 2002), vacated on other grounds.Bond v. Walsh, No. 02-2157, 2002 WL 31832555 (2d Cir. Dec. 17, 2002).

Thus, Bostic's filing of his second section 440 motion on September 28, 1999 tolled the statute after five days had elapsed. The limitations period began running again on July 7, 2000, when the Appellate Division denied leave to appeal. The unsuccessful efforts to seek leave to appeal from the denial of the second section 440 motion to the Court of Appeals, which were dismissed on August 22, 2000 (Kaye, C.J.), and September 20, 2000 (Wesley, J.), did not further toil the limitations period for the reasons set forth above.

The period thus ran until Bostic filed his habeas petition in this Court. The petition was received and formally filed by the Clerk of the Court on August 21, 2001. However, a prisoner's filing in this context is deemed to occur not when the petition is docketed in court, but when he gives it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266 (1988). In this instance, I am unwilling to assume that Bostic gave the habeas petition to his jailers on the date appearing on the petition. The petition is dated December 14, 2000, more than eight months before the petition was received by the Clerk. It is obviously unlikely that a delay of that length is attributable to the time it takes the prison authorities to mail a prisoner's petition to the court. Moreover, respondent has obtained from the prison in which Bostic is housed a disbursement request, which reveals that on August 15, 2001, six days before this Court received the petition, Bostic (under the name "Kevin McKinnis" as "Bostic" is apparently an alias) took $4.86 out of his prison account to pay for certified mail, return receipt requested, to this courthouse. Thus, I agree with respondent that August 15, 2001, should be deemed the date on which Bostic gave his habeas petition to the prison authorities. Notably, Bostic, who filed an application opposing the motion, does not contend otherwise.

A total of 404 days elapsed between the denial of the second section 440 motion and the August 15, 2001, mailing of Bostic's petition to this Court. Thus, a total of 410 days had elapsed before the tiling of the petition, which rendered it untimely.

Equitable tolling of the one-year grace period within which a petitioner is required to file the petition is available only when "extraordinary circumstances" prevent the filing of a timely petition.Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000);Smith, 208 F.3d at 17. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. Although Bostic's opposition asserts that he acted with reasonable diligence throughout the period he seeks to toll, he does not specify what that means. Nor does he provide reasons that would justify equitably tolling the limitations period. He asserts that he believed that the limitations period was tolled while he sought leave to appeal to the Court of Appeals from the Appellate Division's denial of leave to appeal from the denial of his second section 440 motion, but such a mistaken belief is not grounds for equitable tolling. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (per curiam).

CONCLUSION

So Ordered.