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CROMWELL v. KEANE

January 12, 1999

WILLIAM CROMWELL, PETITIONER,
v.
JOHN P. KEANE, RESPONDENT.



The opinion of the court was delivered by: Rakoff, District Judge.

MEMORANDUM ORDER

Petitioner, pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 5, 1997. By Order dated January 5, 1998, the Honorable Thomas P. Griesa, Chief Judge of the Southern District of New York, directed petitioner to show cause why the petition should not be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), since the petition was filed over 19 months after the effective date of the AEDPA. Petitioner responded by Affidavit dated March 31, 1998, offering reasons why his petition should not be so dismissed. On May 27, 1998, the Honorable Andrew J. Peck, United States Magistrate Judge, filed a Report and Recommendation recommending that the petition be dismissed as untimely under the AEDPA. Having received objections from petitioner, the Court, after undertaking a full de novo review, hereby adopts the Magistrate Judge's Report and Recommendation in all material respects. In particular, with respect to petitioner's claim that he qualifies for an "actual innocence" override of AEDPA's statute of limitations, the Court finds that, even assuming, arguendo, that such an override exists, petitioner's proffered "new evidence" of innocence is neither new nor admissible. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also Alexander v. Keane, 991 F. Supp. 329, 338 (S.D.N.Y. 1998). Accordingly, the petition is dismissed with prejudice. Clerk to enter judgment.

SO ORDERED.

REPORT AND RECOMMENDATION

FACTS

Petitioner Cromwell's habeas petition was received by the Court's Pro Se Office on December 5, 1997. (See Petition.) The Petition indicates that on December 8, 1983, Cromwell was convicted of murder in the second degree, criminal possession of a weapon and assault, and was sentenced to 18 years to life imprisonment. (Petition ¶¶ 1-4.) The Appellate Division, First Department affirmed his conviction without opinion on March 17, 1988. People v. Cromwell, 138 A.D.2d 983, 526 N.Y.S.2d 875 (1st Dep't 1988). (See Petition ¶ 9(a) -(d).) The New York Court of Appeals denied leave to appeal on June 15, 1988 and denied reconsideration on August 17, 1988. People v. Cromwell, 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897, reconsideration denied, 72 N.Y.2d 917, 532 N.Y.S.2d 851, 529 N.E.2d 181 (1988). (See also Petition ¶ 9(e); Cromwell "Procedural History & Claims Presented" Supp. To Petition, at p. 3.)

In June 1996, petitioner Cromwell filed a pro se motion to vacate his conviction in New York Supreme Court pursuant to CPL § 440.10. The trial court denied the application on August 8, 1996 and the First Department denied leave to appeal on December 18, 1996. (See Cromwell "Procedural History & Claims Presented" Supp. To Petition at pp. 4-5 & Ex.; see also Petition ¶ 11(b).)

As previously noted, petitioner Cromwell filed his present federal habeas corpus petition with the Court's Pro Se Office on December 5, 1997. By Order dated January 5, 1998, Chief Judge Griesa directed Cromwell to show cause why the AEDPA's one-year statute of limitations should not bar his petition. By Affidavit dated March 31, 1998, Cromwell asserted that his habeas petition was not untimely for three reasons. First, Cromwell asserted that because he filed his habeas petition within one year of the First Department's decision denying his CPL § 440.10 collateral attack, his habeas petition was timely. (Cromwell 3/31/98 Aff. at pp. 6-7.) Second, Cromwell relied upon Judge Sweet's decision in Rosa v. Senkowski, 97 Civ. 2468, 1997 WL 436484 (S.D.N Y Aug.1, 1997), certificate of appealability granted, 1997 WL 724559 (S.D.N.Y. Nov.19, 1997), for the proposition that application of the AEDPA's one-year statute of limitations would violate the Suspension Clause. (Cromwell 3/31/98 Aff. at pp. 3-4.) Third, Cromwell asserted that his petition should be entertained because he has shown evidence of "actual innocence." (Id. at 4-5.)

ANALYSIS

THE AEDPA'S STATUTE OF LIMITATIONS BARS CROMWELL'S PETITION

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. The AEDPA, inter alia, instituted a one-year statute of limitations for habeas petitions filed after April 24, 1996:

    (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.
    (2) The 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
  ...

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