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HUGHES v. IRVIN

June 25, 1997

HOWARD HUGHES, Petitioner, against FRANK IRVIN, Supt., Wende Correctional Facility, Respondent.


The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 Pro se petitioner Howard Hughes filed this habeas petition pursuant to 28 U.S.C. § 2254, challenging his 1980 judgment of conviction for second degree murder, first degree manslaughter, and second degree criminal possession of a weapon. Respondent moves to dismiss the petition as untimely and as barred by laches. The Court denies respondent's motion.

 Procedural History

 On the night of December 22, 1977, petitioner Hughes and another man shot a candy store owner in the course of a robbery attempt. The prosecution case consisted of the testimony of several eyewitnesses and a witness who testified that Hughes confessed to him on the night of the shooting. On May 2, 1980, after a jury trial conviction, petitioner was adjudicated a second felony offender and sentenced. So began a marathon of seventeen years of petitioner's direct appeals and collateral attacks, concluding with the instant petition for habeas relief.

 Petitioner timely appealed his conviction, but due to replacement of appellate counsel and misplaced records, petitioner's brief was not filed until November 1986. Pet. Mem. Of Law at 19. During the six-year delay, Hughes continually inquired about the status of his appeal. See Appendix to Pet. Mem. Of Law, ("Mem. Appendix"), Exs. 9-11. Upon pro se petitioner's motion, the Appellate Division ordered the People to file their opposition brief by January 15, 1988, or be precluded from filing a response. Decision & Order 12/21/87, App. Div., 2d Dep't (Mem. Appendix, Ex. 13). The Appellate Division affirmed the judgment of conviction on March 14, 1988. People v. Hughes, 138 A.D.2d 523, 526 N.Y.S.2d 130 (2d Dep't 1988). On May 11, 1988, the Appellate Division denied petitioner leave to appeal to the New York Court of Appeals. On September 16, 1988, the Court of Appeals dismissed petitioner's motion for leave to appeal to the state's highest court. People v. Hughes, 72 N.Y.2d 957, 534 N.Y.S.2d 671, 531 N.E.2d 303 (1988).

 Beginning in December 1980, several months after his conviction, Hughes filed a stream of collateral attacks in New York state courts. Between 1980 and 1984 petitioner filed a total of nine motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 and a motion for a writ of error coram nobis. *fn1" Several of his motions were repetitive. Since the conclusion of direct review in 1988, petitioner has had collateral review motions pending before New York state courts continuously until August 5, 1996 (leave to appeal denied on petitioner's seventh motion to vacate), with the exception of a four-month gap between September 12, 1989 (denial of petitioner's sixth motion to vacate) and January 11, 1990 (petitioner files seventh motion to vacate). *fn2"

 Petitioner's seventh motion to vacate, filed on January 11, 1990, bears separate mention. Hughes claimed that the prosecution failed to disclose Rosario3 material -- an allegedly authentic police report that memorialized a key prosecution witness' statement that persons other than Hughes confessed to the witness that they killed the candy store owner. *fn4" Petition Appendix, Ex. A; Resp. Aff. at 5. On March 23, 1990, petitioner's motion was denied without a hearing. Resp. Aff. at 5. Hughes appealed, and the Appellate Division reversed and remanded the motion to the lower court for an evidentiary hearing on whether the police report at issue was authentic, and if so, whether Hughes was prejudiced by its nondisclosure. People v. Hughes, 181 A.D.2d 912, 581 N.Y.S.2d 838 (2d Dep't 1992). On February 9, 1993, a hearing was held on petitioner's seventh § 440 motion, at the conclusion of which the court held that Hughes had failed to prove that the document at issue was authentic. The judge credited the police detective who testified that he never prepared the report proffered by the defendant, and declined to accept the defendant's testimony as to the manner in which he allegedly received the police report. Resp. Brief 8/31/95 at 15 (citing to 2/9/93 hearing minutes). The lower court also issued a written Decision and Order dated April 12, 1993, reiterating its finding that Hughes had failed to prove that the police report was authentic. Id. at 14. The Appellate Division granted leave to appeal on June 16, 1993. Resp. Aff. 5/26/94.

 There followed a three-year delay in the appeal process. Petitioner states that he filed his appeal brief on March 21, 1994, and launched his "crusade to compel the Respondents to file their answer." Pet. Mem. Of Law at 15. From September 1994 to October 1995, petitioner wrote numerous letters to his counsel and to the Appellate Division inquiring about the status of his appeal and the state's delay. See Mem. Appendix, Exs. 6-7. Upon advice from the Appellate Division, petitioner moved to preclude the People from replying. See id., Ex. 7. The People finally filed their brief on August 31, 1995, seventeen months after Hughes' submission. On January 22, 1996, the Appellate Division affirmed the lower court's conclusion. People v. Hughes, 223 A.D.2d 654, 637 N.Y.S.2d 21 (2d Dep't 1996). On August 5, 1996, the Court of Appeals denied leave to appeal. People v. Hughes, 89 N.Y.2d 865, 653 N.Y.S.2d 288, 675 N.E.2d 1241 (1996).

 Hughes' habeas petition, dated December 30, 1996 and filed in this Court on January 23, 1997, raises twenty-four claims by way of a voluminous appendix containing his submissions to New York state courts on direct and collateral appeals during a period of fourteen years. Petitioner's grounds for habeas relief include the failure to disclose exculpatory evidence, ineffective assistance of trial and appellate counsel, a Fourth Amendment violation, the use of perjured testimony, and a Batson claim. Petitioner also moves for appointment of counsel pursuant to 18 U.S.C. § 3006A.

 Discussion

 Respondent does not address the merits of petitioner's claims, but urges the Court to dismiss Hughes' petition as untimely and as barred by the doctrine of laches.

 A. Statute of Limitations

 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, establishes a one-year statute of limitations from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" for the filing of a habeas application seeking relief from a state court conviction. 28 U.S.C. § 2244(d)(1)(A). *fn5" The running of the limitations period is tolled ...


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