The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Scottie Morrison (hereinafter "Morrison" or "petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for five counts of first-degree robbery and one count of thirddegree robbery. Morrison challenges his conviction on the following grounds: (1) he was denied effective assistance of trial counsel; (2) he was denied effective assistance of appellate counsel; (3) the court improperly denied his challenge for cause of a prospective juror; and (4) his sentence was unlawful, harsh, and excessive.
For the reasons set forth below, the petition is denied.
The following facts are adduced from the instant petition and underlying record.
On March 25, 1998, at approximately 9:00 a.m. on Beldevere Street in Brooklyn, New York, Morrison approached Mary Ann Santiago ("Santiago") and Marilyn Rivera ("Rivera"), displayed what appeared to be a gun, and took their jewelry. (Trial Transcript (hereinafter "TT") at 1156, 1162, 1163, 1213.)
On March 28, 1998, at approximately 12:30 a.m. on Himrod Street in Brooklyn, New York, Morrison approached Jacqueline DeJesus ("DeJesus") and Melissa Sepulveda ("Sepulveda"), displayed what appeared to be a gun, threatened to shoot them, and took their jewelry. (Id. at 947, 952, 955, 957.)
On April 15, 1998, at approximately 11:30 a.m. on Covert Street in Brooklyn, New York, Morrison approached Naomi Gonzalez and Janice Rojas ("Rojas"), displayed what appeared to be a gun, threatened to kill them, and took jewelry and money from Rojas. (Id. at 1830, 1840, 1843, 1845.)
On April 15, 1998, at approximately 12:30 p.m. on St. Nicholas Avenue in Brooklyn, New York, Morrison approached Rebecca Vega and Jasmine Gonzalez ("Gonzalez"), displayed what appeared to be a gun, threatened to shoot them, and took Gonzalez's earrings. (Id. at 1388, 1391, 1400.)
On April 16, 1998, at approximately 3:40 p.m. on Grove Street in Brooklyn, New York, Morrison approached Anna Acevedo and Melanie Santiago, displayed what appeared to be a gun, and took their jewelry. (Id. at 1494, 1500, 1504, 1506-1508.)
B. Pre-Trial and Trial Procedures
Following his arrest, Morrison was charged with seven counts of robbery in the first degree pursuant to N.Y. Penal Law §§ 160.15, eight counts of robbery in the third degree pursuant to N.Y. Penal Law § 160.05, and additional related counts.*fn1
The Supreme Court of the State of New York, Kings County, held a pre-trial Wade hearing to determine whether the lineup identifications made by the complaining witnesses were unduly suggestive and should therefore be suppressed. The hearing court determined that the lineups in which Morrison was placed were fair and denied his motion to suppress. (Hearing Transcript (hereinafter "HT") 51-52.)
Subsequently, Morrison was tried before a jury and convicted of five counts of firstdegree robbery and one count of third-degree robbery. Morrison was acquitted of all counts relating to the March 25, 1998 incident involving Santiago and Rivera. The court sentenced Morrison as a second violent felony offender to two consecutive terms of imprisonment of fifteen years on two of the first-degree robbery counts and concurrent sentences of fifteen years on the remaining three first-degree robbery counts. (Sentencing Tr. at 16-17.) The court sentenced Morrison to a concurrent term of three and one-half to seven years on the third-degree robbery count. (Id.)
C. State Appeals and Post Judgment Motions
Morrison appealed his conviction to the Appellate Division, Second Department, raising three claims: (1) he was deprived of the effective assistance of counsel at trial; (2) the court erred in denying his challenge for cause of Juror Astarita; and (3) his sentence was unlawful, harsh, and excessive.
On November 26, 2001, the Appellate Division, Second Department, affirmed Morrison's judgment of conviction, holding that he had received effective assistance of counsel, the sentence imposed was not excessive, and that the court had properly imposed consecutive sentences where the crimes committed were based on separate and distinct act. People v. Morrison, 733 N.Y.S.2d 881 (N.Y. App. Div. 2001). Leave to appeal was denied by the Court of Appeals on March 26, 2002. People v. Morrison, 769 N.E.2d 365 (N.Y. 2002). Morrison's judgment of conviction was deemed final on June 24, 2002, ninety days after the New York Court of Appeals denied his leave application.
On May 15, 2002, Morrison sought new counsel and retained the Freedom Forum of New York City (hereinafter "Freedom Forum"), a unit of Furman Law Firm. On October 9, 2002, Sara Goldman (hereinafter "Goldman"), pro bono counsel with the Freedom Forum filed (on behalf of Morrison) an application for a writ of error coram nobis in the Appellate Division, alleging that his appellate counsel was ineffective. On December 2, 2002, the Appellate Division held that Morrison's assertion was unsupported, and denied his application for a writ of error coram nobis. People v. Morrison, 751 N.Y.S.2d 744 (N.Y. App. Div. 2002). Morrison did not appeal the Appellate Division's decision.
On May 13, 2003, Morrison received a letter from Goldman after he called the Freedom Forum stating that he had not received correspondence regarding the outcome of his application for a writ of error coram nobis. (Petitioner's Exhibit (hereinafter "Pet.'s Ex.") E.) Goldman's letter stated that the outcome of Morrison's application had been sent to him on December 9, 2002, but was returned to her office on January 7, 2003. (Id.)
In Goldman's letter to Morrison, she explained that her correspondence was returned because he refused to pick up his "legal mail." (Id.) In conclusion, Goldman's letter stated, "I am currently drafting a 2254 for submission to federal court in your case. I expect to have it complete in a few weeks. I will send you a copy at that time for review and comment before I file it." (Id.)
On June 3, 2003, Freedom Forum received Morrison's annual renewal fee. (Pet.'s Ex. C.) As per the Freedom Forum's "Member Renewal Payment Receipt," it was required to "exhaust all state and federal [remedies] that in the opinion of general counsel is appropriate." (Id.) Morrison, however, did not receive any correspondence from the Freedom Forum until Daniel Furman ("Furman"), the sole proprietor of Furman Law Firm, sent petitioner a letter dated September 20, 2003. (Pet.'s Ex. F.) Furman's letter advised petitioner that his 2254 petition was being reviewed and that Goldman was no longer his counsel due to an illness. (Id.) Furman apologized for the delay and stated, "rest assured you are first in our thoughts as to completing the 2254." (Id.) Pursuant to 28 U.S.C. § 2244(d), however, as explained infra, Morrison's petition for a federal writ of habeas corpus should have been filed by August 16, 2003.*fn2
In a letter dated February 22, 2004, Morrison expressed his displeasure with the lack of correspondence he had received from the Freedom Forum. (Pet.'s Ex. G.) Morrison's letter referenced another letter he had written to the Freedom Forum, dated December 30, 2003, inquiring about the status of his petition for a writ of habeas corpus. (Id.) Petitioner claims that the Freedom Forum never responded to the February 22, 2004 correspondence. (Pet. Aff. at ¶ 12.)
Morrison also claims to have spoken to a "Mr. Levine" of the Freedom Forum shortly after he received Mr. Furman's letter dated September 20, 2003. Morrison stated that Levine assured him that his case was being pursued. Morrison requested all documents pertaining to his case so that he could pursue his own defense. (Pet.'s Ex. G.) Morrison did not receive a written response from the Freedom Forum regarding the aforementioned inquiry. He did, however, receive a letter dated August 23, 2004, from Mr. Alireza Dilmaghani ("Dilmaghani"), a staff attorney for Furman Law Firm, who was now acting in the capacity of a probate attorney for the Freedom Forum. (Pet.'s Ex. H.) The letter advised petitioner that he would no longer be represented by the Freedom Forum because Furman had passed away and the firm had ceased to exist. (Id.) Dilmaghani's letter explained that Morrison's documents would be sent to him. (Id.)
Subsequently, Morrison sent a letter, dated November 7, 2004, to the New York Police Department Legal Bureau requesting documents pursuant to the New York State Freedom of Information Act. (Pet.'s Ex. I.) Additionally, on December 27, 2004, Morrison requested minutes from the New York Supreme Court, Kings County Appeals Bureau. (Pet.'s Ex. J.) On May 26, 2005, petitioner requested information regarding his petition for a writ of habeas corpus from the New York Supreme Court's Criminal Term Clerk's Office. (Pet.'s Ex. K.) In response to Morrison's inquiry, the Criminal Term Clerk's Office informed him that no writ of habeas corpus was filed by the Freedom Forum on his behalf. (Id.) By letter dated June 10, 2005, the Pro Se Writ Clerk also informed Morrison that no habeas corpus petition had been submitted on his behalf in 2003 and provided petitioner with instructions to file a petition for a writ of habeas corpus himself. (Pet.'s Ex. L.)
On October 31, 2005, Morrison filed a pro se petition for a writ of habeas corpus, raising the same claims that he had raised on his direct appeal and in his state court application for a writ of error coram nobis.
On December 5, 2005, the Honorable David G. Trager issued an Order to Show Cause that asked respondent to submit a return to the petition. Judge Trager also granted petitioner leave to proceed in forma pauperis. On February 2, 2006, the case was reassigned to the undersigned.
An opposition was filed on February 16, 2006, arguing that petitioner's writ of habeas corpus was time-barred pursuant to 28 U.S.C. § 2244(d) and thus should be dismissed. ...