The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Petitioner pro se Carlos Cantres ("Cantres"), who is currently incarcerated, has moved for habeas relief pursuant to 28 U.S.C. § 2254, alleging that the evidence presented at trial was legally insufficient to support conviction, that the verdict was against the weight of the evidence, and that he received ineffective assistance of counsel. Because it is concluded that Cantres' petition is time-barred, his petition for habeas corpus is denied.
On July 18, 1995, a judgment was rendered following a trial by jury in the Supreme Court of the State of New York, Bronx County, convicting Cantres of murder in the second degree and sentencing him to an indeterminate term of imprisonment of from twenty-five years to life.
On December 30, 1997, the Appellate Division, First Department, affirmed the judgment of conviction, finding that (1) the evidence presented at trial, although circumstantial, was sufficient to support a conviction for murder; and (2) the verdict was not contrary to the weight of evidence. People v. Cantres, 238 A.D.2d 56 (1st Dep't 1997).
In an initial letter dated February 13, 1998, Cantres requested the issuance of a certificate granting leave to appeal to the New York Court of Appeals, enclosing the briefs with his request and stating his intention to file a supplemental letter addressing in greater detail the reasons for granting leave.
In a letter dated March 6, 1998, Cantres through counsel filed his supplemental leave letter.
On April 23, 1998, the New York State Court of Appeals denied Cantres' application for leave to appeal to that court. People v. Cantres, 91 N.Y.2d 971 (1997).
On March 29, 1999, Cantres filed his first petition for a writ of habeas corpus. Cantres v. Kuhlman, 99 Civ. 2940. In it, he asserted that the prosecution failed to prove beyond a reasonable doubt by legally sufficient evidence that he committed the murder for which he had been convicted. He argued specifically that he "has yet to be placed on the eighth floor" where the murder occurred, "there was no direct evidence as to who shot the deceased," and the testimony of two witnesses was conflicting. He also argued that:
[t]he time frame as presented by the People proves [his]
point, it was literally impossible for [him] to have went
up in the elevator from the eighth floor to the ninth
floor, proceed out of the elevator, have a brief
discussion with [a witness] then proceed down the hallway
to another staircase, proceed down that staircase to
where [the deceased] was, place the shotgun in or on his
mouth and fire. Then get away without being seen. . . .
In a response dated August 3, 1999, the State argued that certain aspects of Cantres' legal sufficiency claim were unexhausted, owing to his failure to present these particular factual claims to the highest state court. The State also argued that, to the extent his claim was exhausted, it should be denied because the adjudication of the claim in state court did not involve an unreasonable application of federal law as determined by the United States Supreme Court.
In an order dated November 10, 1999, Cantres' motion to dismiss the petition "without prejudice to its renewal after petitioner has exhausted his administrative remedies" was granted.
On June 16, 2000, Cantres moved in New York Supreme Court, Bronx County, to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 on the grounds that his trial counsel was ineffective for his failure to call certain witnesses, properly cross-examine others, and object to the alleged behavior of certain courtroom spectators.
The trial court denied Cantres' motion on the merits on October 23, 2000.
In a decision entered on January 30, 2001, the Appellate Division denied Cantres leave to appeal the denial of ...