The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Robert Hendricks, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hendricks is currently in the custody of the New York Department of Correctional Services, incarcerated in the Elmira Correctional Facility.
I. BACKGROUND/PRIOR PROCEEDINGS
In November 1999 Hendricks was convicted after a jury trial in the Oneida County Court of two counts of Murder in the Second Degree [N.Y. Pen. Law § 125.25(1), (3)], two counts of Robbery in the First Degree [N.Y. Pen. Law § 160.15(1), (2)], and Criminal Possession of a Weapon in the Fourth Degree [N.Y. Pen. Law § 265.01(2)]. Hendricks was sentenced to an indeterminate term of 25 years to life on each murder count, a determinate term of 25 years on each of the robbery counts, and a one-year term on the weapons count; all terms to be served concurrently.
Hendricks, appearing through counsel, timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction on February 11, 2004, and the New York Court of Appeals denied leave to appeal on May 10, 2004.*fn2 Hendricks, appearing through counsel, filed a motion to set aside the verdict under N.Y. Criminal Procedure Law § 330.30 in the Oneida County Court, which denied his motion on November 18, 1999. In February 2003 Hendricks, appearing through counsel, filed a motion to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 in the Oneida County Court, which summarily denied his motion on procedural grounds. Hendricks sought leave to appeal the denial from the Appellate Division, Fourth Department, which granted leave and affirmed the decision on February 11, 2004, and the New York Court of Appeals denied leave to appeal on May 10, 2004.*fn3
On June 30, 2005, Hendricks, appearing pro se, filed a second CPL § 440.10 motion to vacate his conviction in the Oneida County Court. The County Court denied the motion in a written opinion, and the Appellate Division denied leave to appeal on November 8, 2006. On July 16, 2005, Hendricks also filed a petition for habeas relief under 28 U.S.C. § 2254 in this Court, which was dismissed without prejudice on November 17, 2005, to permit Hendricks to exhaust his claims.*fn4
Hendricks filed his petition for relief in this Court on December 19, 2006 (file stamped January 4, 2007).
In his petition Hendricks raises three grounds: (1) Brady*fn5 violation for failure to disclose a statement made by an individual, Paul Roberts, during the police investigation who was not called as a witness at trial and false testimony by the investigating officer at trial; (2) Brady violation for failure to disclose a statement of another individual, Emmanuel Clothakis, who did not testify at trial; and (3) evidence of prior bad acts (uncharged crimes) was improperly admitted (Ventimiglia*fn6 violation).
Respondent concedes that all claims have been exhausted, but alleges that the petition is time-barred by the one-year limitation period of AEDPA. Respondent also contends that Hendricks' second and third grounds are procedurally barred.
Because Hendricks filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn7 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect."*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn11 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn15 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn16 A state court decision is conclusively presumed to have been on the merits when the state court disposes of the claim on other than procedural grounds, even where it fails to provide any reasoning for the disposition.*fn17 Where there is no reasoned decision of the state court addressing the ground or grounds raised by Hendicks on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn18
To the extent that Hendicks raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn19 A federal court must accept that state courts correctly applied state laws.*fn20 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn21 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn22
The Facts are well known to the parties and, in the interests of brevity are set forth herein only to the extent necessary to an understanding of the decision of the Court.
Hendricks, together with his co-defendant, was convicted of the murder of David Hall, a bartender at the Top Spin Tavern, and the robbery of Top Spin in the early morning hours of January 8, 1999.
The New York Court of Appeals denied leave to appeal on May 10, 2004. Hendricks' conviction became final 90 days later, Monday August 9, 2004, when his time to petition for certiorari to the Supreme Court lapsed.*fn23 Absent tolling, Hendricks had until one year later, August 9, 2005, to file his petition for relief in this Court.*fn24 He filed his first post-conviction motion for relief in the state courts on June 30, 2005, at which point 325 days of his 365 days had lapsed. The time was statutorily tolled for the period his state court post-conviction CPL § 440.10 motion was pending, through November 8, 2006.*fn25 At that point, absent additional tolling, Hendricks had 40 days, until Monday December 18, 2006, within which to file his petition in this Court. Hendricks filed it on December 19, 2006, one day late.
Hendricks contends he is entitled to equitable tolling for the period December 12 through December 18, 2006. To warrant equitable tolling, a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."*fn26
Equitable tolling is applied only under rare and exceptional circumstances,*fn27 and the party seeking equitable tolling must have acted with reasonable diligence throughout the entire period sought to be tolled.*fn28 The Second Circuit has established only a limited number of circumstances that may merit equitable tolling, e.g., where an attorney's conduct is so outrageous and incompetent that it is truly extraordinary,*fn29 or where prison officials intentionally obstruct a petitioner's ability to file his petition by confiscating his legal papers.*fn30 Equally as important is that a petitioner is required "to demonstrate a causal connection between the extraordinary circumstances upon which to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances."*fn31 If reasonable diligence is not exercised in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances did not prevent timely filing.*fn32 The limitations period is tolled for a period, beginning on the date the extraordinary circumstance occurred, that is equal to the length of time between (i) the date on which filing ordinarily would have been required under the applicable limitations period and (ii) the earliest date after the extraordinary circumstance occurred which that petitioner, acting with reasonable diligence, should have filed his or her petition.*fn33
In his traverse, Hendricks states that on December 12, 2006, he was going to the correctional facility's notary to have an affidavit he intended to submit with his petition notarized. According to Hendricks, under facility policy he was required to go to the notary after lunch, and he took his papers with him to lunch in a folder but was prevented by policy from taking them into the mess hall. Hendricks placed the folder down, and when he went to retrieve them they were missing. He then requested replacement copies of his court papers from home, and it took him six days to receive the copies form home. He filed the very next day.*fn34
Losing papers as described by Hendricks may be somewhat unusual; it does not, however, constitute "extraordinary circumstances" required for equitable tolling. The facts in this case constitute nothing more than mere negligence on the part of Hendricks in failing to properly safeguard his papers. While prison policy may have contributed to the circumstances surrounding the loss of the papers, that does not relieve Hendricks of the responsibility to ensure that his important legal papers are adequately safeguarded. A responsibility that Hendricks failed to fulfill.*fn35
Hendricks is not entitled to equitable tolling for the period December 12 through 18, 2006. The petition is dismissed as untimely.
Even if the Court were to reach the merits of his petition, Hendricks would not prevail. Ground 1: Brady Violation (Roberts Statement) and False Testimony.
Hendricks contends that in failing to disclose the existence of and to turn over a statement made by Paul Roberts on the day of the crime violated Brady v. Maryland, and that his due process rights were violated when the investigating officer, Sgt. Brady, falsely testified at trial concerning the content of that statement.
It is undisputed that the Roberts statement in question was not disclosed. The record also discloses that Roberts was not called to testify at the trial or, for that matter, at any other time during the criminal proceeding. Hendricks raised this issue in his first CPL § 440.10 motion, which the Oneida County Court denied on procedural grounds, N.Y. Criminal Procedure Law § 440.10(b), which requires denial of a 440.10 motion when "the judgment is on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit an adequate review thereof upon such appeal." The Appellate Division granted leave to appeal and affirmed the decision of the Oneida County Court, holding (441 N.Y.S.2d 441):
Defendant contends that the People withheld a statement in violation of their obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. We agree. However, because "there is no 'reasonable probability' that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact," reversal is not required (citation omitted).
Brady and its progeny require the Government to disclose material information that is "favorable to the accused, either because it is exculpatory, or because it is impeaching."*fn36
Brady violation occurs only where there is a "reasonable probability" that a different verdict would have resulted from disclosure of the information that the defendant claims was suppressed.*fn37 That is, "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial."*fn38
The Appellate Division having found a Brady violation, the only issue to be decided by this Court is whether the Appellate Division erred in determining that the violation was harmless.
Hendricks argues that the Roberts statement undermines the credibility of two prosecution witnesses: Richard Hoffman and Sgt. Brady. Respondent contends that Roberts' statement did not contain any material evidence that undermined the testimony of either Hoffman or Brady, i.e., that it contradicted undisputed evidence and too factually inaccurate to constitute material evidence. The Court agrees.
Roberts' statement reads:*fn39
At about 2:30 am, On Friday morning, January 8,1999, I was home at 1148 Lincoln aVe.[sic], Utica, N.Y., getting dressed. I looked out my window after hearing a comotion [sic] outside, and noticed four or five males outside of the Top Spin Tavern, 11152 Lincoln Ave.. [Sic] There was one black guy and three white guys, and they were yelling and agruing [sic] about something. I recognized the black guy as one of the owners of the Top Spin and I don't know who the white guys are. There was a gray car parked outside bar, and a black Ford Explorer parked behind the gray car. The Explorer is owned by the black guy. I went to get dressed, and came back out to the front room, went outside and got my papers, and noticed that the males in front of the bar were gone. The black Explorer was still parked there, along with the gray car. The other owner named Richie, had his car parked in the parking lot of the funeral home. It is a maroon colored, Mitsubishi Eclipse. I didn't see him, but I noticed his car was gone at about 3:00 am .. [Sic]
The white guys were wearing work clothes, jeans and work boots, and they were in their mid ...