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PANARO v. KELLY

May 27, 1998

VICTOR PANARO, Petitioner,
v.
WALTER KELLY, Respondent.



The opinion of the court was delivered by: HECKMAN

ORDER

 Petitioner is seeking habeas corpus relief under 28 U.S.C. § 2254. The parties have consented to have the undersigned conduct all further proceedings in this matter, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). For the reasons that follow, the petition is denied.

 BACKGROUND

 On June 21, 1991 petitioner was charged by the Erie County Grand Jury, along with codefendant Charles Luciano Spataro, with Murder in the Second Degree, in violation of New York Penal Law § 125.25-1. *fn1" Spataro moved to sever the trials. His motion was granted and petitioner was tried first. On December 7, 1992, following a jury trial in Erie County Court before Hon. Joseph P. McCarthy, petitioner was found guilty of murder in the second degree. On February 9, 1993, Judge McCarthy sentenced petitioner to an indeterminate term of imprisonment of twenty years to life. Codefendant Spataro was acquitted of the second degree murder charge after a separate trial.

 Petitioner appealed to the Appellate Division of New York State Supreme Court, Fourth Department, claiming that (1) the exclusion of a defense witness' testimony deprived him of due process of law, (2) proof at trial was insufficient to support the verdict of guilty beyond a reasonable doubt, and (3) his sentence should be modified in the interest of justice.

 On March 17, 1995, the Fourth Department unanimously affirmed the judgment of conviction. People v. Panaro, 213 A.D.2d 1036, 624 N.Y.S.2d 497 (4th Dep't 1989). In a memorandum, the Fourth Department found that "the statement [of witness Margaret Giglia] was not admissible as a declaration against the codefendant's penal interest because there were no supporting circumstances present independent of the statement itself to attest to its trustworthiness and reliability" Id., 213 A.D.2d at 1036, 624 N.Y.S.2d at 497 (citing People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612 (1978). The Fourth Department reviewed petitioner's remaining contentions and concluded that they were lacking in merit. Id., 213 A.D.2d at 1036-37, 624 N.Y.S.2d at 498. On May 26, 1995, petitioner's request for leave to appeal was denied by the New York Court of Appeals. People v. Panaro , 85 N.Y.2d 978, 629 N.Y.S.2d 738, 653 N.E.2d 634 (1995). Petitioner filed a petition for certiorari to the United States Supreme Court, which was denied on October 30, 1995. Panaro v. New York, 516 U.S. 946, 133 L. Ed. 2d 308, 116 S. Ct. 386 (1995).

 On April 8, 1997, petitioner filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising the following grounds: (1) he was denied his fundamental right to present a defense at trial, and (2) his conviction was based on evidence insufficient to establish guilt beyond a reasonable doubt (Item 1, P 12).

 Respondent has answered the petition, maintaining that the writ should be denied on the grounds that it was not timely filed, and petitioner's claims were addressed by the appellate court and found to be without merit.

 DISCUSSION

 Timeliness.

 Respondent argues that this petition is barred by the time limit set forth at 28 U.S.C. § 2244(d)(1) which provides in pertinent part as follows:

 
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
 
(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; . . . .

 This time limit was imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), ...


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