Rush v. Lempke
| Decision Date | 02 February 2011 |
| Docket Number | No 09-CV-3464 (JFB),09-CV-3464 (JFB) |
| Parties | Eddie Rush, Petitioner, v. John B. Lempke, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
February 2, 2011
Eddie Rush (hereinafter "Rush" or "petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted in a judgment rendered on May 20, 2003, following a jury trial, in the County Court, Nassau County, of one count of burglary in the first degree (N.Y. Penal Law § 140.30[4]), one count of grand larceny in the third degree (N.Y. Penal Law § 155.35), one count of grand larceny in the fourth degree (N.Y. Penal Law § 155.30[8]), two counts of robbery in the first degree (N.Y. Penal Law § 160.15), one count of robbery in the second degree (N.Y. Penal Law § 160.10[1]), one count of criminal use of a firearm in the first degree (N.Y. Penal Law § 265.09[1]), one count of criminal use of a firearm in the second degree (N.Y. Penal Law § 265.08[2]), and one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). Petitioner was sentenced to concurrent, determinate terms of imprisonment, the longest of which was twenty-five years.
Petitioner challenges his conviction on the following grounds: (1) the trial court denied his due process rights by shackling him during trial; (2) the trial court erroneously admitted an out-of-court statement made by a non-testifying co-defendant; (3) the trial court erroneously denied petitioner's request to proceed pro se; and (4) the sentence imposed upon himby the court was excessive.1 Respondent seeks to dismiss the instant habeas corpus petition because petitioner failed to file it within the applicable statute of limitations period provided by 28 U.S.C. § 2244(d)(1). The Court concludes that Rush's petition is untimely under Section 2244(d)(1) and finds that there is no basis for equitable tolling or statutory tolling of the statute of limitations. In the alternative, the petition is denied in its entirety on the merits.
The Court has adduced the facts below from the instant petition and underlying record.
On November 24, 2000, at about 1:45 p.m., petitioner and an accomplice ("Eason" or "accomplice"), masked and armed with handguns, invaded the Malverne, New York, home of John and Nonthawan Vallely and their five-month old son. (Tr. 552-53, 556, 599-602.)2 Petitioner and Eason ordered the Vallelys to remove their clothing, forced them into the bathroom, and directed them to lie down on the floor on top of one another. (Tr. 555-57, 602.) Petitioner and his accomplice left with the Vallelys' automobile, cash, and a cell phone. (Tr. 554-55, 603.)
Shortly after leaving the Vallely home, petitioner and Eason were spotted by the police in the stolen vehicle nearby. (Tr. 618-20.) Rush led pursuing police officers on an erratic, high-speed chase, colliding with and sideswiping numerous vehicles, which ended when he rear-ended a car occupied by New York City detectives. (Tr. 622, 626-27, 649-51.) During the chase, the passenger door of the car opened a few inches and closed again. (Tr. 623, 650-52.) A loaded handgun was recovered near the site where petitioner collided with another vehicle, and was identified by the Vallelys as the one displayed by one of the burglars. (Tr. 603-04, 671-73, 675.)
Petitioner and Eason were taken into custody and transported to the Fifth Precinct in Nassau County. At the stationhouse, Eason was searched and found in possession of house keys, car keys, and a mitten with the word "Echo" written on white, reflective material on the back. (Tr. 681-82, 808-09, 827-29.) Detectives then returned to the area around the Vallely home and discovered that the car keys recovered from Eason opened a blue-green Nissan Quest parked only 100 feet from the Vallelys' home. (Tr. 809-10.)
The following day, on November 25, 2000, Rush and Eason were transported to detention from the 85th Precinct station house. (Tr. 796-98.) During the trip, Eason is reported to have said that he "shouldn't have thrown the gun out the window." (Tr. 797.)
When detectives examined the stolen vehicle that Rush and Eason were driving during the police chase, they found a black wool ski mask, a black knit glove, and some cash on the floor of the front driver's side. (Tr. 725-32, 778-82.) On the floor of the right rear passenger's side was another blackmask, and on the front passenger's seat were a pair of sunglasses and another black knit glove. (Tr. 725-32, 778-82.) Another glove was protruding from the compartment of the center armrest, and, near the gear shift detectives found an Ericson cell phone. (Tr. 725-32, 778-82.) Detectives also found a mitten with the word "Echo" written on white, reflective material, on the right, rear passenger seat of the car. (Tr. 725-34.)
At trial, the Vallelys identified the two ski masks found in the stolen vehicle as the ones worn by the robbers. (Tr. 561-62, 604.) Mr. Vallely identified the Ericson cell phone as the one stolen from him, (Tr. 55859), and Mrs. Vallely identified the gun that was recovered near the area where the highspeed chase ended as the silver handgun brandished by the burglars. (Tr. 603-04.) The trial also included testimony from the officers and detectives involved in the highspeed chase, as well as testimony by the police officers who observed petitioner and Eason in the stolen car. (Tr. 618-21, 648-51, 672-73, 707-10.)
As his only witness, petitioner called Detective Vito Schiraldi ("Detective Schiraldi") of the Forensic Evidence Bureau of the Nassau County Police Department. Detective Schiraldi testified that he analyzed two hairs recovered from one of the ski masks found in the car. One of the hairs was approximately a centimeter long, the other about sixteen or seventeen centimeters long. (Tr. 864.) Detective Schiraldi testified that one of the hairs was of mixed racial origin. (Tr. 864.) Although a hair sample was taken from Rush for comparison, Detective Schiraldi said that Rush's hair sample was too short to produce any conclusive DNA information, and was therefore unsuitable for comparison. (Tr. 864-65.)
On September 30, 2002, Rush and his co-defendant Eason pled guilty before the Supreme Court, Bronx County, to the charge of reckless endangerment in the first degree. Petitioner admitted to stealing the car that both he and Eason were found in at approximately 2:30 p.m. on November 24, 2000, in the vicinity of the Bruckner Expressway. (Tr. 843-44; Resp't's Merits Opp. dated May 12, 2010 ("Resp't's Merits Opp.") at 7-8, 20.)
On January 24, 2003, a jury convicted petitioner on all counts of the indictment charging him with various acts of grand larceny, burglary, robbery, and weapons use and possession. (Tr. 1037-40.) Judgment was rendered on May 20, 2003. Petitioner was sentenced to concurrent, determinate terms of imprisonment, the greatest of which was twenty-five years, with five years of post-release supervision. Additionally, the court imposed restitution in the amount of $6,624.62. Petitioner appealed his conviction to the Appellate Division, Second Department ("Appellate Division") arguing that: (1) the trial court erroneously denied his request to proceed pro se; (2) the trial court violated his due process rights by shackling him during trial; (3) the trial court erroneously admitted a co-defendant's out-of-court statement at trial; (4) the trial court incorrectly permitted the use of plea admissions at trial before he could attempt to challenge the voluntariness of those admissions; and (5) the sentence imposed on Rush was unduly excessive and harsh. On October 9, 2007, the Appellate Division affirmed the judgment of conviction. People v. Rush, 843 N.Y.S.2d 392, 392-93 (App. Div. 2007). The New York State Court of Appeals denied petitioner'sapplication for leave to appeal on December 20, 2007. People v. Rush, 880 N.E.2d 883 (N.Y. 2007). Petitioner did not petition the United States Supreme Court for a writ of certiorari.
On July 28, 2008, petitioner was transferred to New Jersey, Hudson County, in anticipation of trial on an unrelated matter. Petitioner wrote a letter notarized on October 15, 2008, to the Clerk of Court of the Southern District of New York, requesting an extension of time to file his habeas petition "until I have been returned TO THE New York Prison system" so that he may have access to his "legal property" necessary for him to "process" his habeas petition. (Habeas Pet. at 8.) It is unclear if this letter was ever sent to or received by the Clerk's Office in the Southern District of New York. Petitioner subsequently filed a letter with the Southern District of New York on June 11, 2009, indicating that he was "returned back to the N.Y.S. Department of Correctional [sic]" on May 28, 2009, and once again requested an extension to file his habeas petition. (Habeas Pet. at 9.)
On July 14, 2009, petitioner filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. This motion was denied by the County Court as procedurally barred and meritless on October 13, 2009. People v. Rush, No. 404N-01 (County Court, Nassau County Oct. 13, 2009).
On July 23, 2009, 3 pro se petitioner filed the instant application before this Court for a writ of habeas corpus. On September 29, 2009, respondent filed a motion to dismiss the petition as untimely. On February 23, 2010, petitioner filed his opposition to the motion to dismiss. On April 12, 2010, this Court ordered the parties to brief the merits of petitioner's application for habeas corpus. On May 12, 2010, respondent filed a declaration and memorandum of law in opposition to the petition. On May 19, 2010, the petitioner requested an additional thirty days to file his reply to respondent's opposition....
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