Walker v. Graham
| Decision Date | 02 July 2013 |
| Docket Number | No. 10–CV–5558 (PKC).,10–CV–5558 (PKC). |
| Parties | Rashid WALKER, Petitioner, v. Warden Harold D. GRAHAM, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Rashid Walker, Wallkill, NY, pro se.
Solomon Neubort, Brooklyn, NY, Kings County District Attorneys Office, for Respondent.
Petitioner Rashid Walker, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition now is before the Court following initial review by Chief Judge Carol B. Amon, to whom the petition originally was assigned. Upon her review pursuant to Rule 4 of the Rules Governing Section 2254 Cases, on December 17, 2010, Judge Amon ordered Walker to show cause why the petition was not time-barred by the applicable one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Dkt. 3; see28 U.S.C. § 2244. Walker responded thereto on January 14, 2011, purporting to set forth the reasons why equitable tolling applied to excuse the untimely filing of his petition. Dkt. 4. Following Walker's submission, Judge Amon ordered Respondent to show cause why a writ of habeas corpus should not issue. Dkt. 5. Respondent submitted a response on May 2, 2011 (Dkt. 6), and Walker submitted a reply in further support of his petition on June 6, 2011. Dkt. 11. Because Walker indicated that he needed more time to conduct the necessary legal research (Dkt. 12), Judge Amon permitted Walker to submit an additional reply in further support of his petition, which Walker submitted on August 2, 2011. Dkt. 13.
Upon review of the record and the submissions of the parties, the Court concludes that the petition must be dismissed as time-barred. However, even were the petition not time-barred, Walker's claims are without merit. Therefore, for the reasons set forth below, the petition is denied in its entirety.
At Walker's state court trial, it was established that in the early morning hours of February 8, 2003, Walker and an acquaintance, Sean Mattis, got into a fight with a group of people at a nightclub in Brooklyn. Following the altercation, Walker and Mattis left the club, retrieved firearms from a vehicle, approached the nightclub, and fired their weapons indiscriminately into the club's entrance. As a result, Chantel Bailey was killed, and four other patrons were seriously wounded. Dkt. 6 at 2.1
Walker, who was tried with Mattis before two different juries,2 presented no evidence at trial, but contested the state's evidence by, inter alia, challenging the introduction and accuracy of testimony regarding Walker's pretrial statements ( see, e.g., Dkt. 8–2 at 77–85, 92–93), the accuracy of prosecution expert witness testimony ( see, e.g., Dkt. 9–2 at 567–68, 580), and arguing in summation that the prosecution had not met its burden and that its evidence was not reliable. See, e.g., Dkt. 9–3 at 630–61.
On January 31, 2005, the jury found Walker guilty of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25[2] ), two counts of Assault in the First Degree (N.Y. Penal Law § 120.10[3] ), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2] ), and two counts of Assault in the Third Degree (N.Y. Penal Law § 120.00[2] ).
On February 10, 2005, Walker was sentenced to: (1) an indeterminate term of 25 years to life for second-degree murder, to run consecutively with (2) two consecutive determinate terms of 25 years for the two first-degree assault counts, (3) a determinate term of 15 years for criminal weapon possession, and (4) two one-year determinate terms of imprisonment on the third-degree assault counts. Dkt. 6 at 3.
Walker appealed his conviction, and the Appellate Division, Second Department unanimously affirmed the judgment. People v. Walker, 45 A.D.3d 878, 846 N.Y.S.2d 340 (2d Dep't 2007). The New York Court of Appeals denied leave to appeal on February 26, 2008. People v. Walker, 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 (2008). Walker's conviction became final 90 days later, on May 26, 2008, when time expired for Walker to seek a writ of certiorari from the United States Supreme Court. See Dkt. 3; Williams v. Artuz, 237 F.3d 147, 150 (2d Cir.2001) () (internal quotations omitted). Thus, Walker, under AEDPA, had 365 days from May 26, 2008, to seek a writ of habeas corpus in federal court.
On January 30, 2009, Walker applied to the Appellate Division for a writ of error coram nobis to vacate his conviction, arguing that his appellate counsel failed to properly raise his Brady and Rosario claims, and therefore he was denied effective assistance of appellate counsel in violation of the Sixth Amendment. Dkt. 6 at 4. The Appellate Division denied the application on June 9, 2009, finding that Walker failed to establish that his appellate counsel was ineffective. People v. Walker, 63 A.D.3d 864, 880 N.Y.S.2d 522 (2d Dep't 2009).3
On June 22, 2009, Walker moved pursuant to New York Criminal Procedure Law § 440.20 in the New York Supreme Court to set aside his sentence (the “440 Motion”). Dkt. 6 at 4. Walker moved on the basis that the imposition of consecutive sentences violated the constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the facts necessary to impose consecutive sentences were determined by the judge, not the jury. Dkt. 6 at 4. The New York Supreme Court denied the motion on the merits on October 16, 2009, on the basis that the petition was procedurally barred because Walker already had sought relief regarding the same issue on direct appeal. Dkt. 6 at 4.
On November 17, 2009, Walker moved for leave to appeal the trial court's denial of the 440 Motion to the Appellate Division. Dkt. 4 at 2. The Appellate Division denied Walker leave to appeal on June 2, 2010. Dkt. 4 at 2; People v. Walker, Case No. 2010–00276, 2010 WL 2197330 (2d Dep't June 2, 2010). On June 14, 2010, Walker sought leave to appeal the denial of the 440 Motion to the New York Court of Appeals. The New York Court of Appeals denied leave to appeal on July 7, 2010. See People v. Walker, 15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061 (2010).4
On November 29, 2010—917 days after May 26, 2008—Walker submitted the instant petition for a writ of habeas corpus. Dkt. 1. As discussed below, because only 488 days within that time period were tolled for purposes of AEDPA, Walker's petition was filed 429 days after May 26, 2008, i.e., 64 days past the AEDPA one-year time limit.
At the outset, the Court is mindful of its obligation to construe pro se pleadings “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (emphasis omitted), and that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
AEDPA sets a one-year limitation period for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction. 28 U.S.C. § 2254(d)(1). The applicable one-year period runs from the date on which one of the following four events occurs, whichever is the latest:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244. Subsection (A) governs the time limit for the filing of the instant petition. According to subsection (A), the one-year period within which Walker had to file a habeas petition began running on May 26, 2008, which was when the time expired for him to seek from the United States Supreme Court review of the denial of his direct appeal.
Importantly, 28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. (emphases added). In other words, the limitation period is tolled by statute during the pendency of any properly filed application for state post-conviction or other collateral review, such as a 440 Motion. Accordingly, such time does not count towards the one-year limitation period within which to file a petition for habeas relief.
The Second Circuit addressed what constitutes a “properly filed” and “pending” application under 28 U.S.C. § 2244(d)(2) in Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir.2001). There, the court reaffirmed its prior holding that “properly filed” simply means “an application for state post-conviction relief recognized as such under governing state procedures.” Id. at 70 (citing Bennett v. Artuz, 199 F.3d 116, 123 (2d Cir.1999)). In Bennett, the Second Circuit held that “a state-court petition [for post-conviction or other collateral review] 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.' ” Id. (citing Bennett, 199 F.3d at 120)....
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