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March 15, 2004.

ABDULA MUSA, Petitioner against DANIEL A. SENKOWSKI, Superintendent, Respondent

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. History

This petition for a writ of habeas corpus was filed on November 15, 2002. Respondent filed papers in opposition on March 3, 2003. Petitioner's request for counsel was denied on July 25, 2003 with leave to renew upon showing of sufficient merit. Affidavits and memoranda of law were filed by respondent on December 4, 2003 and January 7, 2004. By letter dated February 12, 2004, petitioner attempted to controvert respondent's arguments.

  No hearing is required. The case can be decided on the papers.

  Respondent originally rested on procedural defenses to the habeas petition. At the court's request respondent then addressed the merits.

  The petitioner claims:
Ground One: Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
  Supporting Facts: Officer approached vehicle I was passenger in, put a gun to my Page 2 head, never informed me I was under arrest. He searched and seized property from vehicle as well as from my personal possession without a warrant. Never read me my Miranda rights, nor did I ever sign the Miranda form. He also testified in court he took me to the precinct and didn't even talk to me for four hours.
Ground Two: Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
Supporting Facts: In accordance with the law once the officer stopped my mobility by putting a gun to my head I was under arrest. Officer never informed me that I was under arrest, never at all read me my Miranda rights, and unlawfully seized two watches from my possession that were used to obtain a conviction in this case.
Ground Three: Convictions obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. Supporting Facts: Walter Stevens Parole Officer kept a memo book of all contact between myself and the Special Narcotics Unit of the N.Y.P.D. Officer McDonald no relation to Sgt. McDonald who testified, and Officer James were not produced as promised by the prosecution, claiming that these officers of the N.Y.P.D. were transferred from the 81st Pct. And D, A. claimed he didn't know [their] whereabouts, [their] testimony would have produced evidence favorable to the defendant.
  Ground Four: Blanket exclusion of all spectators during a portion of the trial. Page 3
Supporting Facts: Judge had bailiff clear courtroom of all spectators. He called the jury back in and instead of allowing the public back into the courtroom he allowed the prosecutions star witness to testify in a conducive atmosphere, not exposed to public scrutiny.
By undated papers received on December 9, 2003, defendant now asks this court to ascertain "the truth about his sentence" and, in doing so, raises the following claims:
(1) That defendant was improperly sentenced as a persistent felony offender;
(2) That the cross-examination portion of Detective Thomas Visconti's trial testimony, primarily that portion which dealt with the reading of defendant's Miranda rights, was inaccurately transcribed and was altered by a second or third unnamed party;
(3) That defendant received ineffective assistance of trial counsel by virtue of counsel's failure to raise a defense recognized by law;
(4) That defendant's conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure;
(5) That the trial court erroneously issued a blanket exclusion of all spectators during a portion of the trial;
(6) That the prosecution failed to disclose to the defendant favorable evidence, namely the testimony of Parole Officer Walter Stevens who kept a memobook of all contact between defendant and two N.Y.P.D. officers who did not testify at trial;
  (7) That defense counsel prejudiced defendant by slandering defendant's mother Page 4 during summation;
(8) That defendant was prejudiced by the trial court's decision to interrupt defense counsel's summation so that the jury could go to lunch;
(9) That defendant was deprived of his right to a speedy trial pursuant to N.Y.C.P.L. §§ 30.30, 30.20; and
(10) That the trial court erred by failing to give an adverse inference charge for the loss of Detective Thomas Visconti's police memobook.
  These original and two amended claims have been considered by this court. None have merit.
  On the form for his original petition, petitioner (sometimes referred to below as defendant) answered question 13 as follows:
If any grounds listed in 12 A, B, C, and D were not previously presented in any court, state or federal, state briefly what grounds were not so presented, and give your reason for not presenting them: By the advice of my Appellate Counsel "don't put all your eggs in one basket" I didn't raise any of the grounds listed in 12 A, B, C, or D.
  Defendant's position at the trial was that he had been induced by the police to locate drug spots and that he conducted the alleged crimes as a police agent. See Transcript of Trial pp 285-300. Defense counsel consulted with petitioner while outlining the defense to the trial court. Id. p. 300. While the trial court appeared skeptical, it allowed the defense to try to prove this claim. Id. 285-301. The defendant himself testified at length in support of this contention. Id. 376 ff. Defense counsel was aggressive and highly competent in his examination of all witnesses Page 5 his motion practice and his summation. The jury did not accept the petitioner's theory.

  The record supports the following sequence of events.

  On June 14, 1995, at approximately 6:45 p.m., defendant, armed with a gun and accompanied by two armed assailants, entered a grocery store at 999 President Street, in Brooklyn. While pointing to a police "badge" that was hanging from a chain around his neck, defendant placed his gun to the head of Jose DeJesus, an employee who was in the front of the store. One of defendant's accomplices then handcuffed DeJesus and took him to the rear of the store. Meanwhile, defendant's other accomplice handcuffed Jose Beato, the store manager who was behind the front counter. After ordering DeJesus and Beato to lie face down on the floor, defendant took money and personal property from them. Defendant also took money and several items from the store. Defendant and his cohorts then fled.

  Defendant's actions were captured on videotape by the store's security camera. When the police arrested defendant two weeks later, they found him with DeJesus' wrist watch. Upon watching the surveillance videotape, defendant admitted to the police that he was one of the individuals pictured on the tape and that the police badge he had worn belonged to a security guard at St. Vincent's hospital.

  Defendant was charged, under Kings County Indictment Number 8158/95, with seven counts of Robbery in the First Degree (N.Y.P.L. § 160.15[4]), seven counts of Robbery in the Second Degree (N.Y.P.L. § 160.1 [1]), four counts of Grand Larceny in the Fourth Degree (N.Y.P.L. § 155.30 [5]), two counts of Criminal Impersonation in the Second Degree (N.Y.P.L. § 190.25[3]), and three counts of Unlawful Imprisonment in the Second Degree (N.Y.P.L. § 135.05. The counts in the indictment pertained to the June 14, 1995, robbery which is the subject Page 6 of the instant petition, as well as two other robberies which defendant committed on June 15, 1995, and June 25, 1995, respectively.

  Defendant's accomplice and nephew, Earl Dicks, was charged under the same indictment. Dicks pled guilty to first-degree robbery and was sentenced to a prison term of four and one-half years to nine and one-half years. Defendant's other accomplice, Anthony Roberts, was charged similarly under Kings County Indictment Number 13728/96. Roberts pled guilty to attempted second-degree robbery and was sentenced to a prison term of three and one-half years to seven years.

  On September 25, 1996, following a jury trial, defendant was convicted of three counts of Robbery in the First Degree (N.Y, P.L. § 160.15[4]) two counts of Unlawful Imprisonment in the Second Degree (N.Y.P.L. § 135.05), and one count of Criminal Impersonation in the Second Degree (N.Y.P.L. § 190.25[3]).

  On December 10, 1996, defendant's trial counsel, David Chidakel, successfully moved to set aside the jury verdict pursuant to N.Y.C.P.L. § 330.30(1) on the ground that the jury foreperson failed to disclose during voir dire or at any time during the trial that criminal charges for third-degree criminal sale of a controlled substance were pending against her. Defendant's motion was granted on February 13, 1997.

  On May 12, 1997, following his re-trial by a jury, with the same counsel as on the first trial, defendant was convicted of three counts of Robbery in the First Degree (N.Y.P.L. § 160.15 [4]).

  On September 9, 1997, defendant was sentenced as a persistent felony offender to a prison term of twenty-five years to life on each robbery count, to be served concurrently. Page 7

  At both his first trial and subsequent re-trial, defendant's defense was that his actions were motivated by his honorable intentions to rid the neighborhood of drugs that were allegedly being sold at the grocery store.

  In May, 1999, defendant, through appointed appellate counsel David Weiss, filed an appellate brief in the Appellate Division claiming that defendant's trial counsel rendered ineffective assistance by pursuing a defense that was inadequate as a matter of law.

  Defendant filed a pro se supplemental appellate brief in the Appellate Division raising the following claims:
(a) that the destruction of the original surveillance videotape by the police constituted a Brady violation and warranted dismissal of the indictment;
(b) that the trial court abused its discretion when it failed to sanction the People for the loss of the detective's memobook;
(c) that defendant was deprived of his statutory and constitutional right to a speedy trial; and
(d) that the trial court abused its discretion by refusing to accept defendant's waiver of sequestration of the jury.
  By decision and order dated May 14, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction. People v. Musa Abdullah, 283 A.D.2d 512, 724N.Y.S.2d 636 (2d Dep't 2001). On November 28, 2001, the New York Court of Appeals denied leave to appeal. People v. Musa Abdullah, 97 N.Y.2d 654, 737 N.Y.S.2d 55 (2001).

  The respondent's position was that none of petitioner's claims could be considered by this court. An affidavit of December 4, 2003 states:

  Defendant has failed to exhaust his state remedies with respect to all four of his [original] claims. Defendant's first three claims must be deemed procedurally Page 8 barred because they pertain to matters that are based on the record and could have been raised by defendant on his direct appeal. Defendant's fourth claim, that during an unspecified portion of his trial the courtroom was closed to the public, appears to be based on matters that are dehors the record. Therefore, a state remedy in which to exhaust this claim still remains available to defendant. Accordingly, defendant's petition should be dismissed in its entirety.


  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 Page 9 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)(1).

 III. Limitations Period

  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)(1). 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 Page 10 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). Page 11

  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 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").

  The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled Page 12 equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).

  "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances,' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).

  Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,

  If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to ...

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