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JOSE GARCIA, Petitioner,
LEONARD PORTUONDO, etc., et al., Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Petitioner Jose Garcia is before this Court on a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that his constitutional rights were violated by the failure of the government to turn over Brady materials and by ineffective assistance of counsel. Respondents have moved to dismiss the petition as untimely. Petitioner does not dispute that his petition was filed outside the one year limitations period, but argues that habeas relief is not foreclosed because he is actually innocent of the crime.

  In a report and recommendation dated September 9, 2003 ("Report and Recommendation"), Magistrate Judge Kevin N. Fox recommended that the Court grant respondents' motion to dismiss, finding that petitioner filed his habeas petition nearly two years after the expiration of the limitations period and that petitioner failed to make a showing of actual innocence sufficient to overcome this "procedural" default. Petitioner has objected to the Report and Recommendation.*fn1

  In light of its de novo review of the record, this Court respectfully disagrees with Judge Fox's analysis and recommendation. Thus, petitioner's objections to the Report and Recommendation are sustained, and the respondents' motion to dismiss the petition as untimely is denied.


  The Trial

  Petitioner was convicted for the second-degree murder of Cesar Vasquez, a crime of which he maintains his innocence. As much in this case turns on whether evidence not presented to the jury is sufficient to present a credible claim of actual innocence, a brief description of the trial is appropriate.

  The prosecution's star witness was Penny Denor, the only testifying eye-witness to the murder. Ms. Denor testified that, on July 16, 1991, the night of the murder, she looked out of her fourth-floor window for her fourteen year-old son, who had not come home for dinner.*fn2 After spotting her son directly beneath her window, she saw three men with handguns — the driver and two passengers — get out of a blue vehicle that was double-parked near her son.*fn3 She looked at the face of the driver, at his gun, and back to his face.*fn4 She testified that she saw the front seat passenger of the car, noticing in particular his "very flower[,] . . . very outstanding" shirt, and the other passenger, another man.*fn5 Fearing for her son's safety, she ran down the hallway and stairs to the courtyard and heard five or more gunshots.*fn6 When she arrived in the courtyard, she saw a body lying on the ground and then saw three men run through the gate and into the blue vehicle.*fn7

  There was no physical evidence linking petitioner to the murder. Instead, the prosecution established petitioner's connection to the murder through the testimony of Ms. Denor and Detective Pezzullo, the detective assigned to the case, in two ways. First, Ms. Denor made an in-court identification of Garcia as the front seat passenger.*fn8 Second, Ms. Denor testified that she had been present at a lineup approximately five months after the murder. She said she initially identified someone other than number five as the individual in the lineup whom she recognized. Immediately upon leaving the room, however, she said she had told Detective Pezzullo that she had identified the wrong person, implied that she had been afraid to identify the person she actually recognized because a defense lawyer had been present, and told the detective that she knew all along that the person she recognized had been the individual in number five position.*fn9 Detective Pezzullo testified that he was present at the lineup and that petitioner was in the number five position.*fn10

  The defense attempted to discredit the eye-witness testimony, establishing on cross-examination that Ms. Denor had been under the effects of Valium the night of the murder,*fn11 that she had testified previously that Valium made her sleepy,*fn12 that she was on another antidepressant, Thorizine, at the time of the lineup and during trial,*fn13 and that there were a number of inconsistencies in her testimony.*fn14 The defense case consisted of one witness, Griselda Vasquez, the sister of the victim. She testified that, on July 16, 1991, she looked out her window and saw a man who looked like "he had just finished doing something; like a rat"*fn15 get into a car. She then realized that her brother was lying on the ground and ran down the stairs to the courtyard where she found him dead.*fn16 Ms. Vasquez stated that she had known petitioner as a friend of her brother's, that she had seen him before many times, and that she did not see him outside her window the night of the murder.*fn17 The defense attempted also to establish an alibi through Ms. Vasquez, who testified that she telephoned petitioner in Santo Domingo and spoke with him just after the murder occurred.*fn18 The prosecution established on cross-examination, however, that she had no personal knowledge that petitioner had been in Santo Domingo, as she did not physically dial the telephone but had it handed to her once the call had been placed by someone else.*fn19 The prosecution attempted to discredit her testimony also with a rebuttal witness, Edmundo Vargas, who testified in substance that he had lived at the apartment complex where the murder occurred and that he had seen Ms. Vasquez with her mother on the night of the murder,*fn20 contradicting Ms. Vasquez's statement that her mother was not in the country at the time.*fn21

  Prior Proceedings

  On January 8, 1993, the jury found petitioner guilty in the Supreme Court of New York, Bronx County, of second-degree murder. On January 19, 1993, he was sentenced to an indeterminate term of imprisonment of twenty-five years to life. His conviction was affirmed by the Appellate Division, First Department, on September 26, 1995,*fn22 and the New York Court of Appeals denied petitioner's application for leave to appeal on April 4, 1996.*fn23 By motion dated November 26, 1997, petitioner applied to the Appellate Division for a writ of error coram nobis, vacating its decision on the ground of ineffective assistance of counsel, but the motion was denied on July 23, 1998.*fn24

  On May 10, 1999, petitioner filed his first petition for a writ of habeas corpus, raising no claims but asking instead for an extension of time in which to file an application for habeas relief. This Court granted respondents' motion to dismiss the petition as untimely.*fn25 Returning to state court, on September 1, 2000, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10, which was denied on December 7, 2000.*fn26 Leave to appeal was denied by the Appellate Division on August 9, 2000.*fn27

  On April 12, 2002, petitioner sought leave to file a successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b), arguing that his initial petition had not been a habeas petition but a request for an extension of time. In this application, he asserted three grounds for habeas relief: (1) his "actual innocence" of the offense for which he was convicted, (2) Brady violations, and (3) ineffective assistance of counsel. The Second Circuit denied the successive petition application as unnecessary because his initial petition had not been decided on the merits, as it did not raise any claims, and transferred the petition to this Court.*fn28 Now before this Court are petitioner's objections to Magistrate Judge Fox's recommendation that respondents' motion to dismiss the petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA")*fn29 be granted. II

  Under AEDPA, the filing of a habeas corpus petition is governed by a one year statute of limitations.*fn30 Here, the limitations period began to run on July 3, 1996, the date on which his time to seek certiorari from the Supreme Court expired.*fn31 His initial petition, the motion for an extension of time to file his petition, was filed May 10, 1999, almost two years after the statute of limitations period expired. Thus, his petition is untimely, and respondents' motion ...

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