Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CARDONA v. ANDREWS

October 13, 2005.

DEBORAH CARDONA, Petitioner,
v.
ANGINELL ANDREWS, Superintendent, Respondent.



The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM & ORDER

Deborah Cardona ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's state custody arises from a conviction following her plea of guilty pursuant to a plea agreement. This Court referred the matter to Magistrate Judge James C. Francis IV, who issued a Report and Recommendation ("Report") recommending that the Court dismiss the petition as time-barred. Petitioner objects to the Report. For the reasons stated below, the Court adopts the Report and denies the petition.

I. BACKGROUND

  A. Petitioner's Guilty Plea and Sentencing

  On August 21, 2001, Petitioner was indicted by a grand jury of the New York State Supreme Court, New York County, for the possession and attempted sale of crack cocaine in front of 178 East 101st Street in Manhattan on May 3, 2000. (Apr. 2, 2002 Plea Transcript ("Plea Tr.") at 11-12.)*fn1 Thereafter, Petitioner was also indicted for bail jumping after she failed to appear in court on October 24, 2001. On April 2, 2002, Petitioner pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree in violation of New York Penal Law §§ 110 and 220.39, and Bail Jumping in the First Degree in violation of New York Penal Law § 215.57. (Plea Tr. at 3, 18.) On April 26, 2002, pursuant to the plea agreement, Justice Bernard Fried sentenced Petitioner, as a second felony offender, to an indeterminate prison term of three to six years on the narcotics conviction, and a consecutive two to four year prison term for bail jumping. (April 26, 2003 Sentence Transcript ("Sent. Tr.") at 3.)*fn2 Petitioner did not file an appeal because she waived her right to do so in her plea agreement. (Plea Tr. at 18-19.)

  B. Petitioner's Motion to Vacate Judgment

  On December 11, 2002, Petitioner filed a motion to vacate her conviction pursuant to New York Criminal Procedure Law § 440.10. Petitioner alleged (1) her guilty plea was coerced; (2) her plea was not knowing, voluntary, and intelligent; (3) she had been denied counsel at a critical stage of the proceeding; (4) she received ineffective assistance of counsel; and (5) the indictment was void because multiple counts charged her with the same crime. (Notice of Motion dated Dec. 11, 2002.)*fn3 On March 20, 2003, Justice Fried denied her motion to vacate. (Pet. Exh. D at 119, 129.) Thereafter, Petitioner filed a motion for reconsideration on May 1, 2003, (Pet. Exh. D at 11), which Justice Fried denied on May 21, 2003. (Pet. Exh. D at 10.) On July 1, 2003, Petitioner filed a second motion for reconsideration, which Justice Fried also denied on July 25, 2003. (Pet. Exh. D at 3.)

  In an order signed on February 10, 2004 and entered on February 17, 2004, Justice Ellerin of the of the New York State Supreme Court Appellate Division, First Department, denied Petitioner's application for leave to appeal. (Pet. Exh. A.) On March 17, 2004, Judge Rosenblatt of the Court of Appeals of the State of New York dismissed Petitioner's application for a certificate to appeal because the order by the Appellate Division denying Petitioner's application for leave to appeal was not appealable under Criminal Procedure Law § 450.90. (Pet. Exh. B.)

  C. Petitioner's Habeas Corpus Petition

  On August 4, 2004, Petitioner filed the instant habeas corpus petition, arguing (1) that her guilty plea was coerced by fraud and (2) that she received ineffective assistance of counsel. Respondent opposes the petition on the merits and also argues that the petition is time-barred by the one-year period of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Magistrate Judge Francis agreed and recommended that the petition be dismissed as time-barred.

  Petitioner filed written objections to the Report in which she argues that the Report's conclusion regarding equitable tolling was incorrect and that the difficulties inherent in her pro se status and her actual innocence merit a different outcome. (Petitioner's Objection to Magistrate's Report and Recommendation ("Pet. Obj.") at 3-7.)

  II. DISCUSSION

  A. Standard of Review

  The Court reviews de novo all portions of the Report to which there are objections. 28 U.S.C. § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.