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JIMENEZ v. WALKER

October 13, 2001

LUIS JIMENEZ, PETITIONER,
V.
HANS WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM OF DECISION AND ORDER

Luis Jimenez ("Jimenez" or the "petitioner") by petition dated June 19, 2000, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is a motion by the respondent to dismiss the petition as untimely.

I. BACKGROUND

The evidence introduced at trial established that on October 4, 1993 at approximately 9:45 p.m., the petitioner and an armed accomplice drove a van to 136-04 Cherry Avenue in Queens County, where the accomplice fired numerous gunshots at Juan Barrera, killing Elkin Cardona. On December 7, 1994, petitioner was convicted after a jury trial in the Supreme Court of the State of New York, Queens County, of Murder in the Second Degree (Penal Law § 125.25(1)), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02(4)), Criminal Facilitation in the Second Degree (Penal Law § 115.05), and Reckless Endangerment in the First Degree (Penal Law § 120.25). The petitioner was sentenced to concurrent indeterminate terms of imprisonment of from twenty years to life for the murder, from five to fifteen years for the second degree weapon possession, from four to twelve years from the criminal facilitation, and from two to six years for the reckless endangerment.

On January 31, 1997, the People of the State of New York filed their appellate brief in opposition to the petitioner's claims.

On March 25, 1997, the petitioner filed a pro se supplemental brief, arguing that: (a) the trial court erred in charging the jury by instructing them on the crimes of intentional murder and depraved indifference murder cumulatively rather than alternatively and charging the jury on depraved indifference murder; (b) the trial court improperly shifted the burden of proof on the issue of intent, when it failed to define the element of intent in its charge to the jury; and (c) the People failed to establish that the petitioner acted in concert with his accomplice to commit the murder.

On April 18, 1997, the People filed a supplemental brief in opposition to petitioner's pro se claims.

In a decision dated October 27, 1997, the Appellate Division, Second Department, unanimously affirmed the petitioner's judgment of conviction. People v. Jimenez, 245 A.D.2d 304, 670 N.Y.S.2d 118 (1997). In its decision and order, the Appellate Division rejected the petitioner's contentions that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence. The court also specifically held that the People's delay in disclosing Brady material did not warrant a reversal of the petitioner's conviction, because the petitioner had been given a meaningful opportunity to use the allegedly exculpatory material. The Appellate Division also determined that the petitioner's sentence was not excessive. Finally, the court held that the petitioner's remaining contentions, including those in his supplemental pro se supplemental brief, were either unpreserved for appellate review or without merit.

The petitioner sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. In his application, the petitioner specifically asked the Court to review his claim that the trial evidence was insufficient to establish his guilt beyond a reasonable doubt, and that the People's delayed disclosure of alleged Brady material denied him a meaningful opportunity to utilize that evidence. On February 5, 1998, the People filed a response, opposing the petitioner's application for leave to appeal. On February 12, 1998, the petitioner filed a pro se supplement to his appellate counsel's leave application, requesting that the Court grant him leave to appeal the issues regarding the jury charge. On February 27, 1998, Judge Vito J. Titone denied the petitioner's leave application. People v. Jimenez, 91 N.Y.2d 927, 670 N.Y.S.2d 408, 693 N.E.2d 755 (1998). The petitioner did not seek a writ of certiorari to the United States Supreme Court.

On May 19, 1999, the petitioner filed a motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") section 440.10 in the Queens County Supreme Court. The petitioner asserted that his trial counsel was ineffective because he: (a) failed to object to the court's comments during voir dire regarding the petitioner's right not to testify, the prosecutor's statement that the petitioner might be too afraid to testify, and the court's final charge to the jury regarding the petitioner's right not to testify; (b) failed to object to inadmissible and prejudicial testimony; (c) failed to strike evidence of a "chicken foot" that was found at the crime scene; and (d) failed to object to the court's failure to instruct the jury on character evidence.

On June 29, 1999, the People filed an affirmation in opposition to the petitioner's CPL § 440.10 motion, arguing that the petitioner's motion was subject to a mandatory procedural bar because the ineffective-assistance-of-counsel claims were on-the-record claims that should have been raised on direct appeal.

On August 12, 1999, counsel for the petitioner filed a letter application in this Court informing the Court that he had filed the CPL ยง 440 motion in Supreme Court, Queens County, and requesting, therefore, that his habeas petition (1) be held in abeyance until the state post-conviction proceedings had concluded, or (2) be dismissed without prejudice and with leave to renew at the conclusion of the state post-conviction proceedings. On August 16, 1999, this Court dismissed ...


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