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Bell v. Herbert

February 26, 2007

JIMMIE T. BELL, PETITIONER,
v.
VICTOR T. HERBERT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. INTRODUCTION

Petitioner, Jimmie T. Bell ("Bell"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his April 26, 1995 conviction in New York State Supreme Court (Erie County). This case was transferred to the undersigned for decision by order of Magistrate Judge Marian Payson entered December 21, 2006. See Docket No. 23. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 18, 1994, an Erie County Grand Jury returned an indictment charging Bell with one count of rape in the first degree (N.Y. Penal Law § 130.35(1)) and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(1)). The charges stemmed from Bell's forcible rape of the complainant, Lisa Zdeb, on July 1, 1994, at a motel in the City of Buffalo.

The Buffalo Police Department first became involved in the incident on July 3, 1994, when they responded to a report of a fight. When Officers Maroney and Lynch arrived on the scene, they observed between fifteen and twenty white males attacking a black male, later identified as Bell. T.191.*fn1 After breaking up the fight, the officers spoke to one of the assailants, Eric Toye ("Toye"), who informed them that he and his friends had attacked Bell because Bell had raped Toye's friend, Lisa Zdeb ("Zdeb"). T.181, 186. The officers thereafter escorted Bell to the police station and commenced an investigation into the alleged rape. T.192. Zdeb provided the police with details of the rape, which had occurred two days before the fight, on July 1, 1994. Bell eventually was arrested in connection with the incident.

Zdeb testified that she was from Derby, New York, originally, but at the time of the incident, she had no permanent address. She had been staying with different friends in Buffalo, and even living on the street. T.81-82. Zdeb testified that Bell approached her on July 1, 1994, while she was at Topic, an outdoor café on Allen Street in the City of Buffalo. T.83. Bell began a conversation with her and ultimately asked if she wanted to get coffee with him at Bakerman's.

T.85-86; 119-20. After they had been chatting for a while, Toye approached the café and joined them. The three then proceeded to walk towards Bakerman's café. T.85-87; 126; 175-76. As they were walking, they encountered a group of Toye's friends who were walking on the opposite side of the street. T.90. Toye crossed the street to speak with them as Zdeb and Bell waited. After several minutes, Bell suggested that they hail a cab and continue without Toye. T.90-92; 132-34; 176-77.

Instead of going directly to the café, however, Bell directed the taxi driver to stop at the corner of West Huron and Niagara Streets. T.92. Once there, Zdeb and Bell exited the taxi. Bell told Zdeb to wait for him, and he walked around the corner. Zdeb did not recognize the neighborhood she was in, and did not know how to get back to Allen Street. T.93-94; 136. Very few people were on the street and she felt scared. T.94; 137. A few minutes later, Bell reappeared and asked Zdeb is she would come inside to help him carry something. Zdeb agreed, assuming that the "something" to which Bell was referring was drugs. T.93-95.

The two walked around the corner and entered a building, which Zdeb initially said resembled a delicatessen. T.145. Once inside, Zdeb realized that it was not a restaurant; there was a clerk behind a desk and a hallway with doors on either side. T.95-97. Zdeb accompanied Bell to a room at the end of the hall. They entered the room, which contained a bed, a television, and a nightstand. Bell turned on the television so that the volume was very loud, and began to threaten Zdeb. He ordered Zdeb to undress and removed her shirt. T.98. After she removed her clothes, Bell forced her to get onto the bed. T.97-99. Bell then began to pull down his pants, at which point Zdeb realized that Bell was holding a knife in his left hand. T.100. Bell vaginally raped Zdeb, while holding the knife against her neck. T.99-101. Bell told her to "shut up" because she was crying. T.102.

After he was done assaulting her, Bell told Zdeb to get dressed and that she had better stop crying and not tell anyone about what had happened. T.103-04. Zdeb donned her clothes, and Bell then escorted her outside, where he hired another taxi. Zdeb related their conversation in the cab: "[W]e got in the cab and he told me he was going to drop me off where he found me, and just kept threatening me not to tell anyone, and he just said if I told anyone he'd be watching me and he'd come after me if he heard anything, and he said he'd been having his friends watch me because he had told them about my lip ring[.]" T.105. Bell told her that he knew where she "hung out" and had seen here there before. T.106. Bell instructed the taxi driver to drop Zdeb off at the corner of Elmwood and Allen Streets, and Zdeb walked back to the Topic café. T.107; 159.

Toye, Zdeb's friend, testified that he saw Zdeb speaking with Bell in front of the Topic café on the day of the rape. Toye recounted that Zdeb pulled him aside and asked him to have coffee with her and Bell at Bakerman's. T.176. Toye agreed and started to walk with them toward Bakerman's, but he saw another friend on Elmwood Avenue and went on ahead. T.176-77; 183. When he turned around, Bell and Zdeb were no longer in sight, so he went back to the Topic café. T.184. Later that evening, he saw Zdeb walking on Allen Street toward the Topic café. Zdeb was crying and shaking, and she told him she had been raped. T.107; 178-79. Toye testified that he encouraged Zdeb to report the rape to the police and to seek medical attention.

T.180. Zdeb related that she did neither because she was scared and ashamed. T.107; 163. Two days later, Zdeb was at the Topic café when she heard and saw Bell nearby. T.108.

Toye was with her, and he saw Bell, too. Toye ran after Bell and, along with some of his friends, beat Bell until the police broke up the fight. T.180-81. The evening of the fight (July 3, 1994), was the first time that either Zdeb or Toye discussed the rape with the police.

The jury returned a verdict on March 7, 1995, convicting Bell on both counts in the indictment. T.302. On April 26, 1995, Bell was sentenced as a persistent felony offender to concurrent sentences of twenty years to life in prison for the rape conviction, and three and one-half to seven years for the weapons possession conviction. Bell's conviction was unanimously upheld on direct appeal by the Fourth Department. People v. Bell, 234 A.D.2d 915 (App. Div. 4th Dept. 1996). Leave to appeal was denied on March 7, 1997. People v. Bell, 89 N.Y.2d 1009 (N.Y. 1997). Bell prosecuted a collateral motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in Erie County Supreme Court on December 21, 1999. See Exhibit D, Respondent's Exhibits. Justice Forma denied the application in a written decision and order on April 17, 2000. See id. The Appellate Division, Fourth Department, denied Bell's application seeking leave to appeal on October 31, 2000. See id. Although the Fourth Department's order was not appealable, Bell nevertheless sought leave to appeal to the New York Court of Appeals. This was denied as a matter of a law. See id.

Calculating Bell's date of filing pursuant to the prisoner mailbox rule,*fn2 Bell's habeas corpus petition was filed on October 9, 2001, the date he signed it. See Petition (Docket No. 1). Respondent answered the petition and interposed the affirmative defense of untimeliness and, in the alternative, argued that Bells claims were procedurally defaulted or lacking in merit. See Respondent's Memorandum of Law (Docket No. 13). For the reasons set forth below, the Court finds that the petition is untimely and must be dismissed.

III. DISCUSSION

A. Timeliness of the ...


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