The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition for a writ of habeas corpus was timely filed on July 12, 2000. It is based on claims that petitioner:
a) was denied his Sixth Amendments right to be confronted with witnesses against him (hearsay was used from Martin Zavala, Jose Chicas and Jose Jiminez);
b) he was deprived of the right to be tried solely on evidence presented (insinuations by the prosecutor in questioning petitioner put information not in evidence to the jury); and
c) the conviction for unlawful imprisonment should be dismissed.
A summary of the evidence showed the following:
In July 1993, in Bayville, Nassau County, New York, petitioner, along with this stepbrother Frank Sanchez and some other men, approached Nicholas Giordano and Cynthia Hendricks, who were sitting on the beach. Petitioner Sanchez, Giordano and Hendricks worked at the Crescent Beach Club in Bayville. After exchanging greetings with Mr. Giordano, who immediately recognized petitioner, petitioner and Sanchez pushed Giordano to the ground. Sanchez held Giordano in a choak hold, and petitioner then attacked Miss Hendricks. While one of petitioner's companions held down Miss Hendricks's feet, petitioner stuck his fingers inside the young woman's vagina. Miss Hendricks screamed for help, and petitioner covered her mouth with his hand. Petitioner raped her. He then walked away. Miss Hendricks, whose clothes and shoe were bloodied from the attack, left the scene, found a friend nearby, and told the friend that she had been attacked and raped by three men with whom she worked.
The police arrested petitioner and Sanchez that same day. Miss Hendricks and Mr. Giordano separately identified petitioner and Sanchez in lineups conducted that day.
Petitioner was charged with rape in the first degree, sexual abuse in the first degree and two counts of unlawful imprisonment in the second degree. Found guilty by a jury, he was sentenced to concurrent terms of imprisonment of eight and one-third to twenty-five years, six years, and one year.
This conviction was reversed by the Appellate Division because of misconduct by a court official in speaking to the jury. People v. Galdamez, 234 A.D.2d 608 (2d Dept 1996).
On retrial he was again convicted. His sentence was concurrent terms of eight and one-third to twenty-five years, two to six years, and one year.
On appeal he made essentially the claims he now makes. The Appellate Division affirmed finding the evidence was sufficient, and that defendant's remaining claims were either unpreserved or without merit. People v. Galdamez 261 A.D. d 635 (2d Dept. 1999).
No reasons for review were given for review by the Court of Appeals. It denied leave to appeal. People v. Galdamez, 93 N.Y.2d 1018 (1999).
In this court petitioner applied for appointment of counsel. This was denied for lack of a then showing of some merit.
Upon reassignment of the case to the undersigned, the claims and record were reviewed.The case raises serious questions warranting review by the federal courts.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(l).
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(l). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, 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 . . . ." 28 U.S.C. § 2244 (d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post.. conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is "pending from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 ...