Ramos v. Walker
Decision Date | 13 March 2000 |
Docket Number | No. 99 CIV. 5088 LAK.,99 CIV. 5088 LAK. |
Citation | 88 F.Supp.2d 233 |
Parties | David RAMOS, Petitioner, v. Hans G. WALKER, Superintendent, Auburn Correctional Facility, Respondent. |
Court | U.S. District Court — Southern District of New York |
David Ramos, for Petitioner Pro Se.
Morrie I. Kleinbart, Assistant District Attorney, Robert M. Morgenthau, District Attorney New York County, New York City, for Respondent.
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that the state trial court (1) erred in granting the prosecutor's application for a missing witness charge, (2) deprived petitioner of a fair trial when it allowed the prosecutor to argue that petitioner coerced testimony at trial, and (3) committed evidentiary errors by admitting a handgun recovered from the scene of the crime and refusing to allow the defense to introduce a firearms discharge assault report, as well as disallowing various testimony regarding discharge of the firearm and allowing prosecution testimony regarding racial slurs. Respondent moves to dismiss the petition as untimely.
Petitioner was convicted after a jury trial of two counts of attempted murder in the first degree and criminal possession of a weapon in the second and third degrees. He was sentenced to two consecutive terms of 15 years to life for each attempted murder conviction, to run concurrently with concurrent terms of 5 to 15 years and 2 1/3 to 7 years, respectively, for the weapons convictions. Petitioner appealed the convictions on the same grounds listed in this habeas petition, and the judgment was affirmed unanimously by the Appellate Division on June 21, 1994.1 The Court of Appeals denied leave to appeal on August 31, 1994.2 Petitioner subsequently filed two C.P.L. § 440.10 motions to vacate the judgment. The first was filed on January 3, 1997. Leave to appeal to the Appellate Division was denied on August 28, 1997. Petitioner then sought leave to appeal to the Court of Appeals,3 but that application was dismissed on October 10, 1997.4 The second was filed on January 8, 1998 and denied on August 10, 1998. Leave to appeal from that order to the Appellate Division was denied on December 10, 1998. The petition alleges that the denial of the second motion was not taken to the New York Court of Appeals.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, provides in relevant part that:
Prisoners whose convictions became final before the effective date of the AEDPA have been accorded one year from the effective date of the AEDPA to comply with the new limitations period.6 As petitioner's conviction became final before the effective date of the AEDPA, the one year statute of limitations began running on April 24, 1996, the effective date of the statute.
The limitations period continued to run until January 3, 1997, the date on which the filing of petitioner's first C.P.L. § 440.10 motion tolled the running of the one year period pursuant to 28 U.S.C. § 2244(d)(2). By that time, 254 days had elapsed.
The Section 440.10 motion remained pending until leave to appeal to the Appellate Division was denied on August 28, 1997. Unless the toll continued notwithstanding the denial of leave to appeal, the limitations period began running again on that date and expired 111 days later — that is, on December 18, 1997, well prior to the filing of the second post-conviction proceeding. And petitioner contends that the toll remained in effect for two reasons.
Petitioner first contends that he never was served with a copy of the order denying leave to appeal to the Appellate Division and argues that his first Section 440.10 motion therefore remained "pending" within the meaning of 28 U.S.C. § 2244(d)(2) and tolled the limitations period under Bennett v. Artuz.7 Petitioner, however, misapprehends Bennett.
In Bennett, the Court of Appeals held that the particular post-conviction proceeding there at issue remained "pending" for purposes of Section 2244(d)(2) until thirty days after service upon petitioner of a copy of the order at issue. As no such service had been made, the toll continued. But Bennett is distinguishable from this case.
The Court of Appeals' point in Bennett was that Section 2244(d)(2) must be construed to toll the running of the limitations period throughout the period during which the petitioner is exhausting his rights under state procedure in order to avoid premature filing of federal collateral attacks on state convictions. Indeed, its precise holding was "that a state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures."8
In Bennett, the petitioner had further state appellate remedies available provided that he filed an appeal within thirty days after service upon him of a copy of the order sought to be appealed. The fact that he had not been served with a copy of the order meant that the time within which to seek to appeal in the state courts had not expired prior to the filing of the federal habeas petition. Here, on the other hand, petitioner had no appellate remedies available to him under New York law with respect to his Section 440.10 motion once leave to appeal was denied on August 28, 1997.9 Hence, unlike the situation in Bennett, any failure to serve petitioner with a copy of the order denying his motion for leave to appeal to the Appellate Division was immaterial.
Petitioner argues also that the Section 2244(d)(2) toll remained in effect following the denial of his motion for leave to the Appellate Division for the 90 days during which he might have sought a writ of certiorari from the United States Supreme Court.10 Once again, however, he is mistaken.
Section 2244(d)(2) tolls the running of the limitations period only while a properly filed state post-conviction remains pending. It stands in sharp contrast to Section 2244(d)(1)(A), which gives petitioners one year from the later of the end of direct review or the time within which direct review might be sought. Congress thus intended that the time within which a potential federal habeas petitioner might seek certiorari on direct review be excluded in determining the timeliness of the federal petition, but came to precisely the opposite conclusion with respect to post-conviction...
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