AEDPA does not violate the Suspension Clause because petitioners still have an opportunity to be heard on the merits. Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 113 (2d Cir.2000), cert. denied, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000). The Second Circuit has also held that treating a petitioner’s habeas petition as “second or successive” under the AEDPA because her first petition was denied as time-barred does not violate the Suspension Clause because the petitioner had an opportunity to be heard on the merits. Villanueva v. United States, 346 F.3d 55, 62 (2d Cir.2003), cert. denied, 542 U.S. 928, 124 S.Ct. 2895, 159 L.Ed.2d 791 (2004); see also Warren v. Garvin, 219 F.3d 111, 113 n. 2 (2d Cir. 2000) cert. denied, 531 U.S. 968, 121 S.Ct. 404, 148 L.Ed.2d 312 (2000) (<HOLDING>). In contrast, however, the Second Circuit has
holding that even where postconviction petitioner reserved the option to file an amended petition in his opening petition simply filing an amended petition is insufficient to request leave to file an amended petition a motion for leave to file an amended petition was required before it was necessary for the district judge to consider the amended petition recognizing that aedpa would not apply to a habeas petition that was pending at the time of its enactment holding that where tjhere was no dispute from the trial record and between the parties that the defendant requested his counsel to file a notice of appeal and that counsel did not timely file such a disposition was appropriate despite any potential jurisdictional problems in part to avoid the potential that a habeas petition seeking the same relief would use up the defendants opportunity for a first petition and to obviate the risk that a habeas petition would be untimely holding that the habeas petition did not qualify for equitable tolling because the petitioner discovered that his attorney had lied about filing a petition in early 2008 and yet the petitioner did not file one himself until nearly two years later holding that dismissing a habeas petition as timebarred under the aedpa does not violate the suspension clause because petitioner had years to file the petition and gave no explanation why he failed to file on time