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.

Worsham v. West

December 22, 2005

ISHMAEL WORSHAM, PETITIONER,
v.
CALVIN WEST, SUPERINTENDENT FOR ELMIRA CORRECTIONAL FACILITY, RESPONDENT.



REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:

Israel Worsham has submitted a petition for habeas corpus challenging his conviction on kidnapping and related charges. Because the petition is time-barred, I recommend that it be dismissed.

Background

By New York County Indictment No. 1074/01, Ishmael Worsham and co-defendants Damon Vincent and Nishar Bailey were charged with two counts of kidnapping in the first degree and single counts of kidnapping in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree in connection with the kidnapping a 14 year old boy at gunpoint. (Indictment of Ishmael Worsham dated March 7, 2001 submitted with the Petition). The boy was bound with duct tape, blindfolded, and taken in a van to Pennsylvania, where he was held for ransom. (Tr. at 8).*fn1

During that time, numerous telephone calls were made to his family in Manhattan demanding money and drugs for his safe return. (Tr. at 10). Eventually, the petitioner and his accomplices returned the boy to Manhattan for the ransom and were arrested. On January 24, 2002, the petitioner appeared before the Honorable Michael J. Obus in New York State Supreme Court, New York County, and pled guilty to one count of kidnapping in the second degree in full satisfaction of the indictment, in exchange for a promised sentence of twelve years. (Tr. at 5-6). On February 6, 2002, the petitioner was sentenced as agreed. He did not file a notice of appeal. (Affirmation of Ishmael Worsham dated March 17, 2005 ("Worsham Aff."), Exh. C at 1).

On April 22, 2004, Mr. Worsham moved to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on jurisdictional grounds. After denial of his motion, Mr. Worsham petitioned for a writ of habeas corpus.

Because the district court received Mr. Worsham's petition after the statute of limitation had apparently expired, Chief Judge Michael B. Mukasey directed Mr. Worsham to file an amended petition including any facts that show that "'(i) extraordinary circumstances prevented him from filing his petition on time,' and that '(ii) he acted with reasonable diligence throughout the period he seeks to toll.'" (Order dated Jan. 14, 2005 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)(per curiam)).

Discussion

When a conviction or sentence is challenged under 28 U.S.C. § 2254, a petitioner must satisfy the applicable statute of limitations:

(d)(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) 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 ...


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.