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Bellamy v. Fischer

July 24, 2006

JEROME BELLAMY, PETITIONER,
v.
BRIAN FISCHER, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Denny Chin, Usdj

MEMORANDUM DECISION

Pro se petitioner Jerome Bellamy petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate two separate convictions: one on October 4, 1990 (the "1990 Conviction"), and the other on May 10, 1995 (the "1995 Conviction"). Before the Court is respondent's motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1), which imposes a one-year period of limitation on habeas corpus applications by persons in state custody. For the reasons stated below, respondent's motion to dismiss is granted, and Bellamy's petition is dismissed as untimely.

BACKGROUND

A. Factual Background

1. The 1990 Conviction

On October 4, 1990, Bellamy pleaded guilty in New York Supreme Court, New York County, to one count of Criminal Possession of a Controlled Substance in the Fifth Degree. On November 8, 1990, he was sentenced to five years probation. (RX B).*fn1 He did not appeal this conviction, but on November 13, 2003, he filed a pro se motion to vacate the judgment, pursuant to N.Y.C.P.L. § 440.10. (RX A, B). In his motion, Bellamy raised, inter alia, the following issues: 1) he was incompetent to enter the guilty plea; 2) the trial court failed to adequately determine whether the plea was knowing and voluntary; and 3) he received ineffective assistance of counsel. (RX B). Bellamy's motion was denied on January 7, 2004 as untimely. (Id.). The Appellate Division denied leave to appeal on October 8, 2004 (RX

C), and the Court of Appeals denied leave to appeal on December 29, 2004 (RX D). The facts underlying this conviction are not set forth in the record.

2. The 1995 Conviction

The following facts were adduced at trial:

At 1:30 a.m. on December 19, 1993, Michael Bourne and Douglas Gagenbach were walking down the street when a man, later identified as Bellamy, grabbed Bourne from behind and ordered him at knifepoint not to move. (Tr. 60-61, 64-66, 99-101).*fn2 A second assailant brandished a gun and grabbed Gagenbach, who was able to escape, with the second assailant giving chase. (Id. at 99-106). After a struggle, Bourne flipped Bellamy and held him on the ground. (Id. at 61-63). The second assailant returned and brandished a gun, telling Bourne to get off Bellamy or else he would shoot. (Id. at 62-63). Bourne released Bellamy, and then both Bellamy and the second assailant fled the scene. (Id. at 63, 105).

At approximately 1:30 a.m. the following evening, Amy Fredericks was entering her apartment when two assailants pushed her inside the building and ordered her to get down on the ground. (Id. at 178-80). She was ordered at gunpoint to give over her money and jewelry. (Id. at 180). After she did so, the assailants left. (Id.). Minutes later, Bellamy and another man were arrested within blocks of the incident. Fredericks was brought to the scene and identified Bellamy as one of the men who had robbed her. (Id. at 181, 192, 240-46).

Bellamy was tried before a jury in the New York Supreme Court, New York County, for three robberies: a robbery on December 17, 1995, for which he was acquitted; the December 19, 1995 attempted robbery of Bourne and Gagenbach; and the December 20, 1995 robbery of Fredericks. On March 29, 1995, he was convicted on one count each of Robbery in the First Degree, Robbery in the Second Degree, and Criminal Possession of a Weapon in the third Degree, four counts of Attempted Robbery in the First Degree, and two counts of Attempted Robbery in the Second Degree. (RX M).

On May 10, 1995, Bellamy was sentenced to an aggregate term of twenty-seven and one-half to fifty-five years imprisonment. (RX K at 24). He was incarcerated at Elmira Correction Facility in New York, where he remains today. Bellamy appealed the conviction, raising through appellate counsel two issues: 1) the fruits of the seizure should have been suppressed because he was illegally stopped by the police; and 2) the sentence was illegal and excessive. (RX K). On October 22, 1998, the Appellate Division affirmed the conviction, People v. Bellamy, 680 N.Y.S.2d 481 (1st Dep't 1998), and the New York Court of Appeals denied leave to appeal on November 25, 1998, People v. Bellamy, 92 N.Y.2d 980 (1998).

In pro se papers filed on October 6, 1999, Bellamy moved to vacate the judgment pursuant to N.Y.C.P.L. § 440.10 arguing that: 1) the conviction was obtained in violation of his federal and New York State constitutional rights; 2) the prosecutor was wrongly allowed to use statements made by Bellamy in a deposition in a civil case; and 3) Bellamy was deprived of his right to counsel at lineup, at the time of his incriminating statements, and throughout trial. (RX O). The trial court, without opinion, denied the motion on November 23, 1999, and the Appellate Division denied Bellamy's application for leave to appeal on February 29, 2000. (RX Q, S). Bellamy then moved pro se to reargue the Appellate Division's order, which was denied on April 20, 2000. (RX T).

Finally, on February 19, 2002, Bellamy moved pro se, pursuant to N.Y.C.P.L. § 440.20, to set aside the sentence, arguing the prosecutor presented misleading information during sentencing that caused Bellamy to be improperly adjudicated a second felony offender. (RX U). The motion was denied on March 5, 2002. (RX V).

B. The Habeas Petition

Now, in pro se papers dated January 26, 2005, and amended August 25, 2005, Bellamy brings the instant habeas corpus petition. (RX G, H). He challenges the 1990 Conviction, inter alia, on the grounds that: 1) he was incompetent to enter the guilty plea; 2) the trial court failed to adequately determine whether the plea was knowing and voluntary; and 3) he received ineffective assistance of counsel. (RX G). He challenges the 1995 Conviction, inter alia, on the grounds that: 1) he was denied the right to counsel at the lineups and during custodial interrogation; 2) his confession was procured through coercion; 3) trial counsel was ineffective; 4) he was denied the right to testify; 5) the trial court erroneously permitted the prosecutor to use a civil deposition at trial; and 6) the prosecution presented misleading information ...


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