The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM, JUDGMENT & ORDER
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
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
Ground Four: Blanket exclusion of all spectators
during a portion of the trial.
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
(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
(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
his motion practice and his summation. The jury did not accept the
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
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), seven counts of Robbery in the Second Degree (N.Y.P.L. §
160.1 ), four counts of Grand Larceny in the Fourth Degree (N.Y.P.L.
§ 155.30 ), two counts of Criminal Impersonation in the Second
Degree (N.Y.P.L. § 190.25), 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
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) 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).
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
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 ).
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.
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
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
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
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
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)(1).
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
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 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
equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
"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
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 ...