Purdy v. Bennett, 01 Civ.3636(LAP)(GWG).

• Decision Date: 31 July 2002
• Docket Number: No. 01 Civ.3636(LAP)(GWG).,01 Civ.3636(LAP)(GWG).
• Citation: 214 F.Supp.2d 348
• Parties: Ronald PURDY, Petitioner, v. Floyd G. BENNETT, Jr., Superintendent, Elmira Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

214 F.Supp.2d 348

Ronald PURDY, Petitioner, v. Floyd G. BENNETT, Jr., Superintendent, Elmira Correctional Facility, Respondent.

No. 01 Civ.3636(LAP)(GWG).

United States District Court, S.D. New York.

July 31, 2002.

Ronald F. Purdy, Elmira, NY, pro se.

Nisha M. Desai, Assistant District Attorney, Bronx, NY, for respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

PRESKA, District Judge.

Petitioner Ronald Purdy ("Purdy") filed a Petition for a Writ of Habeas Corpus on April 30, 2001. On May 15, 2001, the case was referred to the Honorable Gabriel W. Gorenstein, United States Magistrate Judge. Judge Gorenstein ordered respondent Floyd G. Bennett, Jr. ("Bennett") to file an answer, other responsive pleading or a motion by July 16, 2001 — a date subsequently extended until October 12, 2001.

On October 10, 2001, Nisha M. Desai, District Attorney, Bronx County, moved for an order on behalf of Bennett to dismiss Purdy's Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to commence the proceeding within the period of limitations set forth in 28 U.S.C. § 2244(d)(1) and Ross v. Artuz, 150 F.3d 97 (2d Cir.1998). On November 14, 2001, Purdy filed a Traverse responding to the motion to dismiss. On January 31, 2001, Judge Gorenstein issued a Report and Recommendation (the "Report") dismissing Purdy's petition. On or about March 29, 2002, Purdy filed objections to the Report.

Having reviewed Judge Gorenstein's Report and Purdy's objections, I find the objections to be without merit, and I find the Report to be well-reasoned and thoroughly grounded in the law. Accordingly, it is hereby

Ordered that the Report is adopted in its entirety, and petitioner's petition is dismissed.

The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

SO ORDERED:

REPORT AND RECOMMENDATION

GORENSTEIN, United States Magistrate Judge.

Ronald Purdy, the pro se petitioner in this matter, is a prisoner at the Elmira Correctional Facility. Purdy has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent now moves to dismiss the petition as time barred pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2244(d)(1).

I. STATEMENT OF FACTS

On April 1, 1985, following a jury trial in New York State Supreme Court, Bronx County, a judgment was entered convicting Purdy of four counts of Robbery in the First Degree (N.Y. Penal Law § 160.15) and Possession of Marijuana (N.Y. Penal Law § 221.05). See Affidavit In Support of Motion to Dismiss Petition for Habeas Corpus, dated October 2001 ("Resp.Aff."), ¶ 3; Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated March 15, 2001 ("Habeas Petition") at 1. As a persistent violent felony offender, Purdy was sentenced to twenty-five years to life imprisonment. See Resp. Aff., ¶ 3; Habeas Petition at 1. Prior to sentencing, Purdy filed a petition for writ of habeas corpus under New York State law alleging that Purdy had suffered an unconstitutional arrest, had ineffective assistance of counsel, and was deprived of a fair trial. See Memorandum of Law in Support of Application for Writ of Habeas Corpus, dated March 7, 1985, reproduced as Resp. Aff., Ex. 1. This petition was dismissed. See Habeas Petition at 3; see also Resp. Aff., ¶ 4.

In his direct appeal to the Appellate Division, First Department, Purdy, through counsel, claimed that there had been a number of errors at trial, including improper admission of evidence, prejudicial comments by the prosecutor, an erroneous ruling by the trial judge allowing the prosecutor to inquire about Purdy's prior convictions, an erroneous sentence based on the conclusion that Purdy was a persistent violent felony offender, and an improper sentence due to the absence of a pretrial sentence report. He also claimed ineffective assistance of counsel. See Brief on Behalf of Appellant Ronald Purdy (undated), reproduced as Resp. Aff., Ex. 2. In a pro se supplemental brief, bearing a service date of April 18, 1986, Purdy argued that his guilt as to robbery was not proven beyond a reasonable doubt and that he was deprived of a fair trial and due process of law. See Appellant's Pro Se Supplemental Brief, reproduced as Resp. Aff., Ex. 4. On December 4, 1986, the Appellate Division, without opinion, unanimously affirmed the conviction. See People v. Purdy, 125 A.D.2d 1013, 508 N.Y.S.2d 359 (1st Dep't 1986). On February 16, 1987, the New York Court of Appeals denied Purdy's application for leave to appeal the Appellate Division's ruling. See People v. Purdy, 69 N.Y.2d 832, 513 N.Y.S.2d 1039, 506 N.E.2d 550 (1987). On February 27, 1987, and again on April 28, 1987, Purdy filed petitions with the Appellate Division to amend the remittitur to include certain constitutional questions.¹ See Resp. Aff. at ¶¶ 7, 8. The Appellate Division denied these petitions. See id. On or about June 23, 1987, Purdy filed an Article 78 application in the New York Court of Appeals seeking to compel the Appellate Division to amend the remittitur. See id. at ¶ 9. The Court of Appeals rejected this application on jurisdictional grounds. See id.

On July 9, 1992, Purdy filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated June 2, 1992 ("1992 Petition") in Purdy v. Senkowski, No. 92 Civ. 5125(S.D.N.Y.), reproduced as Resp. Aff., Ex. 5. In the 1992 Petition, Purdy alleged that his arrest amounted to an unconstitutional search and seizure, his counsel was ineffective, his trial was unfairly conducted, and his due process rights were violated. See id. at 5-6. On January 24, 1995, the Court (per Leisure, J.) ruled that Purdy failed to exhaust his ineffective assistance of counsel claims. Because the petition contained unexhausted claims, the court dismissed the entire petition. The court dismissed the petition without prejudice, instructing Purdy to return to federal court when he had either submitted the petition without the unexhausted claims or had exhausted those claims through a post-judgment motion pursuant to New York Criminal Procedure Law § 440.10 (hereinafter, a "440 motion"). Purdy v. Senkowski, 1995 WL 16785 (S.D.N.Y. Jan.18, 1995) (reproduced as Resp. Aff., Ex. 7). Purdy did not appeal this order.

Rather than file a 440 motion, Purdy apparently took no action for two years. Then — without having returned to State court to exhaust his claim — Purdy filed a second federal habeas petition in April 1997, raising precisely the same claims he raised in the 1992 Petition. See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated April 21, 1997 ("1997 Petition") in Purdy v. Senkowski, No. 97 Civ. 3877 (S.D.N.Y.), reproduced as Resp. Aff., Ex. 9. On September 15, 1997, Magistrate Judge Henry B. Pitman recommended that the petition be dismissed. See Report and Recommendation, reproduced as Resp. Aff., Ex. 11. Judge Pitman determined that the petition was untimely under the limitation period established by the 1996 Anti-Terrorism and Effective Death Penalty Act (the "AEDPA") because Purdy did not file the petition until after a "reasonable time" had elapsed. Id. at 4-8.² In an alternative holding, he ruled that because "Purdy has taken no steps whatsoever to remedy his failure to exhaust, his assertion of the same ineffective assistance [of counsel] claim a second time requires dismissal for the reasons stated by Judge Leisure in 1995." Id. at 8. Finally, Judge Pitman recommended that certification under 28 U.S.C. § 1915(a)(3) be issued that any appeal would not be taken in good faith. Id. at 11. On October 14, 1997, District Judge Deborah A. Batts adopted Judge Pitman's Report and Recommendation in its entirety. See Order, filed October 14, 1997, reproduced as Resp. Aff., Ex. 12.

On November 13, 1997, Purdy moved in the Second Circuit for a certification of appealability of the judgment dismissing the 1997 Petition. See Notice of Appeal, dated November 13, 1997, reproduced as Resp. Aff., Ex. 13. On April 13, 2000, the Second Circuit denied this motion "solely because appellant's ineffective assistance of trial counsel claim is unexhausted." See Order, reproduced as Resp. Aff., Ex. 14. The Second Circuit instructed Purdy to exhaust this claim by filing a 440 motion or to file a habeas petition that does not contain this unexhausted claim. See id. This decision also specifically noted that "[t]his Court makes no ruling on the question of timeliness either after the claim has been exhausted or if appellant has abandoned the unexhausted claim." See id.

On May 23, 2000, over five years after he had first been instructed to do so, Purdy filed a 440 motion in the Bronx County Supreme Court, seeking to vacate his conviction on the ground that he had received ineffective assistance of counsel at trial. See Resp. Aff. at ¶ 15; Habeas Petition at 3. On June 29, 2000, the court denied his motion. See Resp. Aff. at ¶ 15; Habeas Petition at 3. On September 21, 2000, the Appellate Division denied Purdy leave to appeal the Supreme Court's denial of his motion. See Resp. Aff. at ¶ 15.

On March 15 2001³, Purdy executed the instant Habeas Petition, which was received by the Court's Pro Se Office on March 19, 2001, and filed on April 30, 2001. In the petition, Purdy raises the same grounds for relief that were raised in his prior habeas petitions: that his arrest was unconstitutional, that he was denied his right to a fair trial, that his trial counsel was ineffective, and that he was denied due process of law. Habeas Petition at 4-4B. By Order filed May 15, 2001, District Judge Loretta A. Preska referred the petition to the undersigned for a Report and Recommendation. On May 17, 2001, the Court ordered the respondent to file an answer, other responsive pleading, or a motion by July 16, 2001 — a date that was...