Yusuf v. Colvin
| Decision Date | 16 September 2022 |
| Docket Number | 18-CV-3360 (MKB) |
| Parties | AADAM YUSUF, Petitioner, v. JOHN COLVIN, Superintendent, Five Points Correctional Facility, and ANTHONY J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Aadam Yusuf, proceeding pro se and currently incarcerated at Five Points Correctional Facility (“FPCF”) in Romulus, New York, brings the above-captioned habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet. 48, Docket Entry No 1.)[1] Petitioner's claims arise from a judgment of conviction in the Supreme Court of New York State, Nassau County (the “Trial Court”), on charges of robbery in the first degree, robbery in the second degree, burglary in the first degree, and conspiracy in the fourth degree.
Petitioner seeks a writ of habeas corpus on the following grounds: (1) trial counsel was ineffective for failing to protest a statement Petitioner made to Queens County detectives as unnoticed under New York Criminal Procedure Law (“CPL”) § 710.30; (2) the prosecution withheld notice of the statement and then “ambush[ed]” Petitioner with a Molineux motion (3) counsel was ineffective for failing to object appropriately to hearsay statements; (4) cell phone records were entered as testimonial evidence without proper foundation and in violation of the Confrontation Clause, and defense counsel was ineffective for not objecting to their admission on that basis; (5) Petitioner was punished for exercising his right to trial, and the trial court was biased; (6) the trial court erred in refusing to charge the jury with lesser-included offenses based upon the affirmative defense of inoperable weapons, and defense counsel did not adequately handle that defense; (7) the indictment was defective, and counsel was ineffective for not challenging the indictment as defective and (8) appellate counsel was ineffective for failing to claim that Petitioner's trial counsel was ineffective and for failing to raise Petitioner's present claims. (See id. at 6-47.)
For the reasons discussed below, because Petitioner failed to file the petition within the time period allowed by the applicable statute of limitations, see 28 U.S.C. § 2244(d)(1)(A), the Court grants Respondents' motion to dismiss. (Resp't's Mot. to Dismiss (“Resp't's Mot.”), Docket Entry No. 10.) As further explained below, even if the petition were timely, it nevertheless would not entitle Petitioner to federal habeas relief because each of his claims fails on its merits.
Petitioner served as the get-away driver for a robbery in Nassau County on November 19, 2010. (Aff. of Andrea M. DiGregorio in Opp'n to Pet. (“DiGregorio Aff.”) ¶ 5, at 3976-77, Docket Entry No. 30.) Using a ruse of flower delivery, four of Petitioner's co-defendants forced their way into the residence. (Id.) Two of the co-defendants possessed firearms. (Id.) Petitioner and a fifth co-defendant waited nearby in Petitioner's vehicle. (Id.) The four co-defendants stole jewelry and money and used duct tape to bind the limbs of one of the robbery victims before fleeing. (Id.)
Nassau County police arrested Petitioner the same day of the robbery. (Id. ¶ 6, at 3977.) In a statement to police, Petitioner acknowledged that he had driven three individuals - only one of whom Petitioner admitted to knowing - in Petitioner's vehicle to a house on Long Island, picking up a fourth person along the way. (Id.) Petitioner admitted that one person who approached the house explained that he was going to the house in order to “get the money.” (Id.) Petitioner stated that he and the individual he admitted knowing remained in Petitioner's vehicle while the others entered the home. (Id.)
Police searched Petitioner's vehicle and found a roll of duct tape with Petitioner's palm print. (Id. ¶ 7, at 3977.) Security footage from the residence showed Petitioner walking in front of the house at the time of the robbery. (Id.)
After making a statement to Nassau County police, detectives from Queens County interviewed Petitioner about a burglary in Queens eleven days earlier in which the victim was related to the victim in the Nassau burglary. (Id. ¶ 8, at 3977.) Petitioner admitted to the Queens detectives that he had dropped off two of his co-defendants at the Queens residence where they proceeded to commit the burglary, that they returned from the house and reentered Petitioner's vehicle holding a bag, that one of the individuals announced “it's payday” after handing Petitioner $1,000, and that Petitioner drove two of the individuals home and the remaining one to work (the “Queens County Statement”). (Id. ¶ 9, at 3977-78.)
On December 6, 2010, a grand jury in Nassau County indicted Petitioner and his codefendants on the following charges: two counts of robbery in the first degree in violation of New York Penal Law § 160.15(4) (Counts One and Two), one count of robbery in the second degree in violation of New York Penal Law § 160.10(1) (Count Three), one count of burglary in the first degree in violation of New York Penal Law § 140.30(1) (Count Four), one count of burglary in the first degree in violation of New York Penal Law § 140.30(4) (Count Five), and one count of conspiracy in the fourth degree in violation of New York Penal Law § 105.10(1) (Count Six). (Direct App. R. 2135-37, Docket Entry No 14.)
On January 31, 2012, a jury found Petitioner guilty on Counts One, Three, Four, and Six, and not guilty on Counts Two and Five. (Direct App. R. 3834-35, Docket Entry No. 14-2.) On March 2, 2012, the Trial Court sentenced Petitioner to concurrent terms of imprisonment totaling twenty-two years followed by concurrent terms of post-release supervision totaling five years. (Direct App. R. 2129-30, Docket Entry No. 14.)
Petitioner's counsel filed a notice of appeal on the same day of his sentencing. (Notice of Appeal 570, Docket Entry No. 10-1.) On March 20, 2013, the Supreme Court of New York, Appellate Division, Second Department (“Appellate Division”) affirmed Petitioner's convictions. People v. Yusuf, 961 N.Y.S.2d 316, 317 (App.Div. 2013). On May 8, 2013, counsel on behalf of Petitioner requested leave to appeal to the New York Court of Appeals (“Court of Appeals”). (Appl. for Leave to Appeal 678, Docket Entry No. 10-4.) On July 3, 2013, the Court of Appeals denied leave to appeal. See People v. Yusuf, 21 N.Y.3d 1021 (2013). Petitioner did not petition the U.S. Supreme Court for a writ of certiorari. (DiGregorio Aff. ¶ 16, at 553-54; Pet. 2.)
On November 23, 2013, Petitioner placed in the prison mail system a pro se motion[2] to vacate his judgment pursuant to CPL § 440. (Pet'r's Aff. of Service of Post-Conviction Mot. 1050, Docket Entry No. 11-2.) By order dated December 3, 2015, the Trial Court denied Petitioner's motion in its entirety. (Order Denying Post-Conviction Mot. 1214, Docket Entry No. 11-6.)
On December 17, 2015, Petitioner placed in the prison mail system a pro se motion[3] for leave to appeal to the Appellate Division. (Pet'r's Aff. of Service of Leave to Appeal PostConviction Mot. 707, Docket Entry No. 11.) On May 26, 2016, the Appellate Division denied leave to appeal. (App.Div. Order Denying Leave to Appeal Post-Conviction Mot. 1228, Docket Entry No. 12-1.)
On January 6, 2016, Petitioner placed in the prison mail system a pro se petition[4] to the Appellate Division for a writ of error coram nobis. (Pet'r's Aff. of Service for Coram Nobis Pet. 1230, Docket Entry No. 12-2.) On September 14, 2016, the Appellate Division denied the petition. People v. Yusuf, 37 N.Y.S.3d 454 (App.Div. 2016). On October 3, 2016, Petitioner deposited in the prison mail system a pro se motion[5] for leave to appeal to the Court of Appeals. (Pet'r's Aff. of Service for Mot. for Leave to Appeal Coram Nobis Pet. 2101, Docket Entry No. 13-2.) On January 4, 2017, the Court of Appeals denied leave to appeal. People v. Yusuf, 28 N.Y.3d 1151 (2017).
On May 18, 2018, Petitioner deposited in the prison mail system the pro se petition to the Court for a writ of habeas corpus. (Aff. of Service of Federal Pet. for Habeas Corpus 49, Docket Entry No. 1.) On July 31, 2018, Respondents moved to dismiss the petition as untimely. (Resp't's Notice of Mot. to Dismiss 547, Docket Entry No. 10.)
b. Service of the Appellate Division's May 26, 2016 Decision
In response to Respondents' motion to dismiss, Petitioner contends that he is entitled to equitable tolling because he never received the Appellate Division's May 26, 2016 decision (the “Missing Order”[6]) denying leave to appeal the Trial Court's denial of his post-conviction motion to vacate judgment. (Pet'r's Decl. in Opp'n to Mot. to Dismiss 3861-62, Docket Entry No. 18.) In support, Petitioner produces a log of legal mail received at FPCF - where he is incarcerated - which shows that: (1) the only legal mail he received during the relevant time period was a letter from the New York Attorney General's Office on June 20, 2016, and (2) Petitioner received no mail from the Appellate Division during the relevant time period. (Prison Legal Mail Logs 3885-86, Docket Entry No. 18.) Petitioner further contends that he sent two letters (the “Inquiry Letters”) to the Appellate Division - dated October 9, 2016 and September 13, 2017, respectively - asking about the status of his motion for leave to appeal and asking for a copy of any decision if one had been made, but that he never heard back. (Letter from Pet'r to Appellate Division (Sept. 13, 2017), at 3873-74, Docket Entry ...
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