Geraci v. Senkowski

• Citation: 211 F.3d 6
• Decision Date: 29 November 1999
• Docket Number: Docket No. 98-2937
• Parties: (2nd Cir. 2000) SAMMY GERACI, Petitioner-Appellant, v. DANIEL SENKOWSKI, Supt. Respondent-Appellee. August Term 1999 Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 6

211 F.3d 6 (2nd Cir. 2000)

SAMMY GERACI, Petitioner-Appellant, v. DANIEL SENKOWSKI, Supt. Respondent-Appellee.

Docket No. 98-2937

August Term 1999

UNITED STATES COURT OF APPEALS

For the Second Circuit

Argued: November 29, 1999

Decided: April 28, 2000

Appeal from an order of the United States District Court for the Eastern District of New York (Gleeson, J.) dismissing appellant's petition for a writ of habeas corpus.

Affirmed.

JOEL A. BRENNER, East Northport, NY, for Petitioner-Appellant.

ROSEANN B. MacKECHNIE, Assistant District Attorney, (Charles J. Hynes, District Attorney Kings County, Victor Barall, Assistant District Attorney, Brooklyn, New York, of counsel), for Respondent-Appellee.

Before: VAN GRAAFEILAND, NEWMAN and POOLER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Sammy Geraci appeals from an order of the United States District Court for the Eastern District of New York (Gleeson, J.) dismissing Geraci's petition for a writ of habeas corpus, under 28 U.S.C. §2254, as both untimely and without merit. See Geraci v. Senkowski, 23 F. Supp.2d 246 (E.D.N.Y. 1998). On November12, 1998, the district court issued a certificate of appealability.

On April 20, 1990, there was a fight in a Brooklyn nightclub. Geraci was convicted in New York State Supreme Court of first degree manslaughter and first degree assault for fatally stabbing Anthony Granese during the fight.

Peter Terranova, an eyewitness, testified before a Kings County grand jury that he saw Geraci stab Granese. Terranova had expressed concern about testifying before the grand jury, but prosecutors explained grand jury secrecy to him and arranged for him to testify at an "off time." A few days before trial Terranova told prosecutors that, if called as a witness, he would testify that he did not see who stabbed Granese. Prosecutors therefore asked the state trial court to admit Terranova's grand jury testimony as part of their case-in-chief. The trial court held a hearing, known as a Sirois hearing, to determine whether misconduct on the part of the defendant had caused Terranova to change his story.

At the hearing, there was evidence that Terranova had contacted the police shortly after the stabbing and given a sworn audiotaped statement describing how he was fifteen feet away when he saw Geraci stab Granese in the chest. Geraci then ran from the club but collided with Rocky Giamportone, the club's owner, whom he stabbed in the leg. Geraci fled in a car with his brother, Frank Geraci. Paul Geraci, another brother, fired a gun to disperse a crowd that was chasing after Sammy.

In November 1991, it was discovered that the grand jury minutes were missing. On January 13, 1992, just prior to trial, Terranova quit his well-paying job without notice and fled from his home. When he subsequently was located in Florida, he stated that he had been approached by a person who showed him his grand jury minutes and that both he and his family were threatened. In addition, he had been offered and received substantial sums of money for staying away from New York until after the trial. Terranova indicated to prosecutors that he would change the story he had given under oath if called to testify. On March 5, 1992, Terranova appeared in New York pursuant to a material witness order.

At the Sirois hearing before the trial court, Terranova testified that he had not seen the stabbing. He explained the discrepancy between his hearing testimony and his testimony before the grand jury on the ground that when he first testified he was unsure of the facts because the club had been dark and he had been drinking.

The trial court determined that Terranova had been "markedly evasive" in his testimony at the hearing. The trial court also found that the prosecution had demonstrated by clear and convincing evidence that Terranova had been threatened by Geraci or someone acting on Geraci's behalf, and that if required to testify, he would do so falsely. As a result, the trial court found Terranova "practically unavailable" and permitted the use of his grand jury testimony in the prosecution's case.

Geraci was convicted and sentenced to a total of 13 1/3 to 40 years imprisonment. The judgment was unanimously affirmed by both the Appellate Division, People v. Geraci, 200 A.D.2d 758 (1994), and the New York Court of Appeals, 85 N.Y.2d 359 (1995). The instant petition was filed on February 24, 1998, almost three years after the New York Court of Appeal's final judgment of affirmance. The initial question that presents itself is whether the instant petition was timely filed. The district court held that it was not.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, requires that petitions for habeas corpus relief from state court judgments of conviction be filed within one year of the judgment's becoming final as a result of direct review. 28 U.S.C. § 2244(d)(1)(A). This Court has held, however, that prisoners whose convictions became final prior to the effective date of the AEDPA, April 24, 1996, should be permitted one year after the effective date to file their first section 2254 petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Geraci filed his petition almost two years after the effective date of the AEDPA. However, periods during which state courts' reviews of convictions are "pending" are not counted toward the one-year limitation period. 28 U.S.C. § 2244(d)(2).

According to the district court's calculations, Geraci's one-year limitation period began to run on April 25, 1996, one day after the AEDPA was enacted. 23 F. Supp.2d at 253. It stopped running 283 days later when Geraci filed a motion pursuant to section 440.20 of New York's Criminal Procedure Law to set aside his sentence. Id. at 251, 253. It 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, and continued to run through November 11, 1997 when Geraci filed a petition for writ of error coram nobis, a total of 78 days. Id. at 253. Thus, a total of 361 days had expired prior to the time Geraci filed his coram nobis petition. The coram nobis petition was denied on February 17, 1998 and the time clock started to run again. It ran until February 24, 1998, the day the instant petition was filed, a total of seven days. When these seven days are added to the 361 day prior total, the one-year AEDPA total was exceeded by three days.

Geraci's counsel contends that, although the Appellate Division's order rejecting his coram nobis application was filed...