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PLOWDEN v. ROMINE

December 29, 1999

NICCO PLOWDEN, PETITIONER,
v.
DONALD ROMINE, WARDEN, RESPONDENT.



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

MEMORANDUM AND ORDER

Nicco Plowden, who was convicted of murder in the second degree in 1995, seeks a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel. Respondent has moved to dismiss the petition as untimely. For the reasons discussed below, the motion to dismiss is granted.

BACKGROUND

On January 6, 1990, Kyle Hubbard was standing in front of a building on McKeever Place in Brooklyn, telling two friends about an argument he had had with Nicco Plowden earlier in the day. Just after this conversation, Plowden exited the building; he and Hubbard spoke; and Plowden then shot and killed Hubbard.

Plowden was subsequently convicted of Murder in the Second Degree, see N.Y. Penal L. § 120.25[1], and, on April 10, 1995, was sentenced to a term of imprisonment of twenty-five years to life.

On direct appeal, Plowden argued that he should have a new trial because of prejudicial comments made by the prosecutor during summation. On February 10, 1997, the Appellate Division, Second Department concluded that Plowden's claim was "largely unpreserved." People v. Plowden, 236 A.D.2d 489, 654 N.Y.S.2d 610, 610 (2d Dep't 1997). The court also went on to conclude that the remarks about which Plowden complained were either "fair comments on the evidence" or "responsive to arguments presented in the defense counsel's summation." Id.

On February 13, 1997, Plowden, through counsel, sought leave to appeal to the New York Court of Appeals. Leave to appeal was denied on May 16, 1997. See People v. Plowden, 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993 (1997). (As discussed below, Plowden avers that he did not find out about the denial until August 1, 1998.)

Plowden did not file a petition for a writ of certiorari in the United States Supreme Court.

On September 29, 1998, Plowden filed a pro se motion to vacate his conviction. See N.Y.Crim. Pr. L. § 440.10. He alleged that his trial counsel was constitutionally ineffective for waiving his right to testify and for not locating and calling as a witness Anthony Johnson, who would have testified that Hubbard, the murder victim, was a known "bully" and that Plowden had shot Hubbard when trying to free himself of a "choke-hold" Hubbard had on him. Plowden also alleged that his appellate counsel was ineffective for not arguing that trial counsel was ineffective in failing to ask for a jury charge on manslaughter in the first degree.

On March 9, 1999, the Supreme Court, County of Kings denied Plowden's § 440 motion. The court pointed to Plowden's on-the-record waiver of his right to testify (despite counsel's advice to the contrary) and an affidavit from trial counsel stating that she had hired a private investigator who had been unable to locate Johnson prior to trial. The court said it could not consider Plowden's claim of ineffective assistance of appellate counsel, which instead had to be raised in a petition for a writ of error coram nobis before the appellate court that had heard his case.

On March 15, 1999, Plowden filed an application for a writ of error coram nobis in the Appellate Division, Second Department. That court denied the application on June 14, 1999. See People v. Plowden, 262 A.D.2d 504, 691 N.Y.S.2d 783 (2d Dep't 1999).

Plowden filed his habeas petition on June 24, 1999, raising the same ineffective assistance claims he brought in his § 440 and coram nobis proceedings in state court.

Respondent subsequently moved to dismiss Plowden's petition as untimely under the one-year statute of limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 ...


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