Judge Allyne Ross
The Appellate Division affirmed Johnson’s 2006 murder conviction, which became final on Aug. 19, 2008.The Anti-Terrorism and Effective Death Penalty Act’s one-year limitation period began to run on the 20th. The Second Circuit vacated, and remanded, district court’s June 17, 2012, order dismissing Johnson’s application for habeas relief as untimely under the one-year limit. Johnson’s motion to vacate conviction pursuant to New York Criminal Procedure Law §440.10 was signed on Aug. 12, 2009, 358 days after conviction became final, tolling the federal habeas deadline with seven days remaining on the limitation period. Johnson’s vacatur motion was denied on July 28, 2010. With seven days remaining on the limitation, Johnson had until Aug. 4, 2012, to file his federal habeas petition. His Aug. 12 petition—eight days after that deadline—was thus untimely. Citing the circuit’s ruling in Saunders v. Senkowski, district court observed that even if Johnson was entitled to equitable tolling—foreclosed under circuit law—he still filed his habeas petition more than seven days after he received the Appellate Division’s order of “on or about 8/3/2010″ to appeal vacatur’s denial.