DENISE COTE, District Judge.
On June 21, 2002, pro se petitioner Bruce King filed a "mixed" petition for writ of habeas corpus, containing one exhausted claim and three additional claims that he is litigating through a C.P.L. § 440 "Motion to Vacate" currently pending in state court. On August 15, 2002, the case was referred to Magistrate Judge Peck for a report and recommendation. Judge Peck issued a Report and Recommendation on November 5, 2002 ("Report"). No objections to the Report were filed. For the following reasons, the Report is adopted, and the petition is dismissed without prejudice.
Petitioner King's pro se habeas petition is dated June 21, 2002 and was received by the Court's Pro Se Office on June 25, 2002.
King's petition asserts four habeas claims, and he concedes that three of the four have not been exhausted. The petition is therefore a "mixed" petition. Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001).
The New York Court of Appeals affirmed King's conviction on June 5, 2001. As a result, the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one year time limit, 28 U.S.C. § 2244(d)(1), began to run 90 days later, on September 3, 2001. King filed his C.P.L. § 440 motion on either May 14, 2002 or June 4, 2002, and this petition in June 2002. As the Report explains, while the filing of this federal habeas petition does not toll the AEDPA limitations period, the pendency of his C.P.L. § 440 motion does toll the period. Since, at most, 274 days have elapsed, i.e. the number of days from September 3, 2001 to June 4, 2002, under the one year time limit for the AEDPA, King will still have, with the dismissal of this action, at least 91 days to bring a federal habeas petition after the state courts rule on his pending C.P.L. § 440 motion.
The petitioner and the State disagree as to the filing date.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, 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." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
I find no facial error in the Report. The Report is therefore adopted.
CONCLUSION
The petition is dismissed without prejudice.
The petitioner is hereby advised that he should file a new federal habeas petition within 91 days after the state courts decide his pending C.P.L. § 440 Motion to Vacate.
It is unnecessary to decide at this time which filing date for the petitioner's C.P.L. § 440 motion is correct for the purpose of determining the one year limitation period under AEDPA. If the earlier filing date of May 14, 2002, is correct, then the petitioner has 112 days from the date of the decision on the C.P.L. § 440 motion to file a federal habeas petition.
SO ORDERED: