Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RAMOS v. WALKER

March 13, 2000

DAVID RAMOS, PETITIONER,
V.
HANS G. WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.

MEMORANDUM OPINION

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that the state trial court (1) erred in granting the prosecutor's application for a missing witness charge, (2) deprived petitioner of a fair trial when it allowed the prosecutor to argue that petitioner coerced testimony at trial, and (3) committed evidentiary errors by admitting a handgun recovered from the scene of the crime and refusing to allow the defense to introduce a firearms discharge assault report, as well as disallowing various testimony regarding discharge of the firearm and allowing prosecution testimony regarding racial slurs. Respondent moves to dismiss the petition as untimely.

Facts

Petitioner was convicted after a jury trial of two counts of attempted murder in the first degree and criminal possession of a weapon in the second and third degrees. He was sentenced to two consecutive terms of 15 years to life for each attempted murder conviction, to run concurrently with concurrent terms of 5 to 15 years and 2 1/3 to 7 years, respectively, for the weapons convictions. Petitioner appealed the convictions on the same grounds listed in this habeas petition, and the judgment was affirmed unanimously by the Appellate Division on June 21, 1994.*fn1 The Court of Appeals denied leave to appeal on August 31, 1994.*fn2 Petitioner subsequently filed two C.P.L. § 440.10 motions to vacate the judgment. The first was filed on January 3, 1997. Leave to appeal to the Appellate Division was denied on August 28, 1997. Petitioner then sought leave to appeal to the Court of Appeals,*fn3 but that application was dismissed on October 10, 1997.*fn4 The second was filed on January 8, 1998 and denied on August 10, 1998. Leave to appeal from that order to the Appellate Division was denied on December 10, 1998. The petition alleges that the denial of the second motion was not taken to the New York Court of Appeals.

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, provides in relevant part that:

"(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;
"(B) the date on which the impediment to filing an application created by State action in violation of the constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
"(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court . . . and made retroactively applicable to cases on collateral review; or
"(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
"(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 toward any period of limitation under this subsection."*fn5

Prisoners whose convictions became final before the effective date of the AEDPA have been accorded one year from the effective date of the AEDPA to comply with the new limitations period.*fn6 As petitioner's conviction became final before the effective date of the AEDPA, the one year statute of limitations began running on April 24, 1996, the effective date of the statute.

The limitations period continued to run until January 3, 1997, the date on which the filing of petitioner's first C.P.L. ยง 440.10 motion tolled the running of the one year period pursuant to 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.