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.
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
On August 12, 1999, counsel for the petitioner filed a letter
application in this Court informing the Court that he had filed
the CPL § 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 ...