The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Rosie Smith ("Smith" or the "petitioner") by a petition dated February
28, 2002, and filed on March 6, 2002, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In papers dated May 9, 2002, the
respondent seeks dismissal of the petition as untimely.
On August 18, 1998, the petitioner's appellate counsel perfected her
appeal to the Appellate Division, Second Department by filing a brief in
that court. Counsel raised the following issues in her appellate brief:
(1) the sentences imposed upon her were unduly harsh and excessive and
should be modified as a matter of discretion in the interest of justice;
(2) the imposition of the surcharges and fees upon her constituted an
unreasonable hardship; (3) because the two counts of criminal possession
of a controlled substance in the third degree were based upon the same
substance encompassed within the two counts of criminal sale of a
controlled substance in the third degree, they should be dismissed in the
interest of justice; and (4) the evidence adduced at trial did not
establish her guilt beyond a reasonable doubt and the verdict was against
the weight of the evidence.
In a decision dated December 31, 1998, the Appellate Division, Second
Department, modified the judgment of conviction entered against the
petitioner to the extent that it ordered all sentences of incarceration
imposed by the trial court be served by the petitioner concurrently. See
People v. Smith, 256 A.D.2d 629, 682 N.Y.S.2d 888 (2d Dept. 1998). As
modified, the court affirmed the judgment of conviction. Id. at 630.
On or about January 12, 1999, the petitioner sought leave to appeal to
the New York State Court of Appeals. As part of her application, the
petitioner claimed that the sentence imposed upon her constituted cruel
and unusual punishment and that the verdict was not based upon proof
beyond a reasonable doubt. On June 25, 1999, the Court of Appeals
(Levine, J.) denied the petitioner's leave application. People v. Smith,
93 N.Y.2d 979, 695 N.Y.S.2d 65 (1999).
On or about March 2, 1999, the petitioner moved the County Court,
Suffolk County, for poor person status and a free copy of the
stenographic transcript of the proceedings in the case. Because the
petitioner failed to set forth any facts to demonstrate her need for the
transcripts and sufficient facts with regard to her financial condition,
the County Court, Suffolk County, denied her application in a memorandum
dated March 22, 1999.
On or about November 3, 2000, the petitioner filed a motion in the
County Court, Suffolk County, seeking to vacate her judgment of
conviction pursuant to Criminal Procedure Law ("C.P.L.") § 440.10. In
support of her motion, the petitioner claimed that: (1) the verdict was
not supported by evidence establishing her guilt beyond a reasonable
doubt; (2) the trial court's evidentiary rulings and jury instructions
were erroneous; (3) the prosecutor committed Rosario (People v. Rosario,
9 N.Y.2d 286, 213 N.Y.S.2d 448, rearg. denied, 9 N.Y.2d 908,
216 N.Y.S.2d 1025, cert. denied, 368 U.S. 866 (1961)) and Brady (Brady
v. Maryland, 373 U.S. 83 (1963)) violations; (4) her attorney's conduct
constituted ineffective assistance of counsel; and (5) wiretapping was
illegally conducted. In an order dated February 2, 2001, the County
Court, Suffolk County denied the petitioner's C.P.L. § 440.10 motion
in its entirety.
On or about July 17, 2001, pursuant to C.P.L. §§ 450.15 and 460.15,
the petitioner moved the Appellate Division, Second Department, for a
certificate granting leave to appeal from the order of the County Court,
Suffolk county denying her C.P.L. § 440.10 post-conviction motion. In
an order dated September 27, 2001, the
Appellate Division, Second
Department denied the petitioner's application for leave to appeal to the
Appellate Division, Second Department.
On March 6, 2002, the petitioner submitted the present application for
a writ of habeas corpus. Her petition raises two claims: (1) her
conviction was obtained by the use of evidence illegally obtained; and
(2) she was denied effective assistance of counsel. On March 18, 2002,
this Court issued an order directing the respondent to show cause why a
writ of habeas corpus should not be issued.
On May 10, 2002, the respondent filed a motion to dismiss the petition
on the ground that it is time barred. On March 24, 2002, the petitioner
filed papers in opposition to the motion.
This petition is brought pursuant to 28 U.S.C. § 2254, and was
filed on March 6, 2002, after the April 24, 1996 effective date of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA").
Accordingly, the provisions of the AEDPA apply to the petitioner's ...