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FENNELL v. ARTUZ

June 18, 1997

CRAIG FENNELL, Petitioner, against CHRISTOPHER ARTUZ, Superintendent of Greenhaven Correctional Facility, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Loretta A. Preska, United States District Judge:

 For the reasons set forth below, I recommend that the Court summarily dismiss petitioner Craig Fennell's habeas corpus petition on the ground that he is not entitled to relief, since his petition is (1) untimely under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and (2) a "mixed" petition.

 FACTS

 Petitioner Craig Fennell's habeas petition is dated April 14, 1997 and was received by the Court's Pro Se Office on April 21, 1997. (See Petition.) The petition indicates that on June 7, 1982, Fennell was convicted of attempted murder, assault and possession of a weapon, and sentenced to 25 years to life imprisonment. (Petition PP 1-4.) The Appellate Division, First Department affirmed his conviction on September 30, 1986. (See Petition P 9.) The Court of Appeals denied leave to appeal later in 1986. (See Petition P 9.) Fennell did not file any collateral attacks on his conviction in state court. (See Petition P 10.)

 Some eleven years after his state court appeal, Fennell filed his federal habeas petition (dated April 14, 1997 and received by the Court's Pro Se Office on April 24, 1997). His petition raises six claims: *fn1" first, insufficient evidence to prove his guilt beyond a reasonable doubt (Petition P 12(B); Fennell Br. Point II); second, prosecutorial misconduct during summation (Petition P 12(C); Fennell Br. Point IV); third, error in not suppressing the identification testimony (Petition P 12(D); Fennell Br. Point III); fourth, errors in the trial court's charge to the jury (Petition P 12(E); Fennell Br. Point V); fifth, error in not holding a hearing when the jury saw Fennell in handcuffs (Petition P 12(F); Fennell Br. Point VI); and sixth, Fennell's sentence was excessive and punished him for exercising his constitutional right to go to trial (Petition P 12(G)).

 Fennell's petition concedes that his last habeas ground -- the excessive and unconstitutional sentence claim -- has not been presented to the state courts. (Petition P 13.)

 On May 13, 1997, Judge Preska ordered the state to respond to Fennell's petition. By letter dated June 3, 1997, the District Attorney's Office asked the Court to summarily dismiss the petition as untimely under the AEDPA's one-year statute of limitations, as interpreted by the Second Circuit in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997).

 Petitioner Fennell responded by letter dated June 5, 1997. Fennell explained that his state appointment of counsel ended in 1986 when the Court of Appeals denied leave to appeal, and that he was unable to afford an attorney. (6/5/97 Letter, p. 2.) Fennell also stated that he was a "functioning illiterate" when sentenced to prison and had to "upgrade his education and then learn legal research skills." (Id.) Fennell noted that he took a legal research course in prison in 1989 (id., p. 3), and attached to his letter his certificate of completion of that course. Fennell's letter, as did his petition, noted that he brought the petition when he did because of the AEDPA deadline. (6/5/97 Letter, p. 3; Petition P 13 ("all issues have been exhausted, with the exception of [the excessive and unconstitutional sentence claim], due to Anti-Terrorism Bill being inacted [sic] and deadline being set.").)

 Fennell's letter sought additional time to respond to the legal grounds in the District Attorney's letter. Because this Court is fully familiar with the state of the law in this Circuit as to the AEDPA's one-year limitation period, because Fennell raised in his letter all his facts as to the timing of his petition, and because Fennell will have the opportunity to file objections to this Report and Recommendation if he wishes, the Court denies his letter request for more time to respond and addresses the AEDPA's limitation period issue (and sua sponte addresses the mixed petition issue).

 ANALYSIS

 I. THE AEDPA'S ONE-YEAR STATUTE OF LIMITATIONS

 On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. The AEDPA significantly modified ยง 2254 for non-death penalty cases. Specifically, the AEDPA instituted a one-year statute of limitations for habeas petitions:

 
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to ...

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