The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge
MEMORANDUM OPINION AND ORDER
Miguel Harvey ("Harvey" or "petitioner") was convicted by a jury in Supreme Court, Queens County, New York, of intentional murder, felony murder, attempted murder, kidnaping, and assault. On November 21, 1994, petitioner was sentenced to concurrent indeterminate prison terms resulting in a sentence of 33 1/3 years to life. On December 17, 1998, petitioner pro se filed a petition for a writ of habeas corpus pursuant to 18 U.S.C. § 2254. On August 23, 1999, the petition was stayed pending petitioner's exhaustion of further state court remedies. Now before this court are an application by petitioner to reopen the case and a motion by respondent to dismiss the habeas petition for lack of prosecution. For the reasons stated below, the application to reopen the proceedings is granted and respondent's motion to dismiss is denied.
The following facts are taken from the parties' submissions in connection with the original habeas petition, the record of the State court criminal proceedings, and the parties' submissions pursuant to this motion.
On March 13, 1994, petitioner, along with an accomplice, Victor Allen, went to the home of Anthony Wilkins. Petitioner and his accomplice held Wilkins at gunpoint, used their victim as a "Russian roulette" target, and compelled Wilkins to call his friend Andre Thompson to determine whether Thompson was home. Harvey and Allen thereafter forced Wilkins to lead them to Thompson's home where, after knocking on Thompson's bedroom window to draw him into view, they fired a barrage of bullets through the window, killing Thompson. Petitioner and Allen then turned their gunfire on Wilkins, shooting him several times and leaving him for dead before fleeing.
For these acts, petitioner was arrested and charged with three counts of murder in the second degree (intentional, depraved indifference, and felony) (N.Y. Penal Law §§ 125.25(1), 125.25(2), 125.25(3)), attempted murder in the second degree (N.Y. Penal Law §§ 110.00, 125.25(1)), kidnaping in the second degree (N.Y. Penal Law § 135.40), two counts of criminal possession of a weapon in the second degree (N.Y. Penal Law § 256.03), two counts of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)), and assault in the second degree (N.Y. Penal Law § 120.05(2)). At the conclusion of a jury trial before Justice Eng, Supreme Court, Queens County, New York, petitioner was convicted of intentional and felony murder, attempted murder, kidnaping, and assault, the remaining counts having been dismissed by the Court on the prosecution's motion before submission to the jury. On November 21, 1995, petitioner was sentenced to concurrent indeterminate incarceratory terms of twenty-five years to life for each of the murder convictions, to run consecutive to concurrent terms of eight and one-third to twenty five years for the attempted murder and kidnaping convictions, and to a term of one-third to seven years for the assault conviction.
Petitioner filed a notice of appeal in the New York Supreme Court Appellate Division, Second Department, on November 24, 1995. In a brief filed before that Court in June 1997, petitioner argued that (1) the People had failed to prove his guilt beyond a reasonable doubt because the ballistics expert's testimony contradicted the testimony of the sole eyewitness, rendering the eyewitness's testimony not credible as a matter of law; (2) petitioner was denied effective assistance of counsel with regard his motion for reassignment of counsel; and (3) the Court's cumulative sentence of thirty-three and one-third years to life imprisonment was unduly harsh and excessive. On February 2, 1998, the Appellate Division unanimously affirmed petitioner's conviction. People v. Harvey, 667 N.Y.S.2d 930 (2d Dept. 1998).
The Court held that, viewing evidence in the light most favorable to the prosecution, the evidence was sufficient to establish petitioner's guilt beyond a reasonable doubt, and the verdict was not against the weight of the evidence. Id. The Court further determined that petitioner's sentence was not excessive, and that petitioner's claim of ineffective assistance of counsel was meritless. Id.
Petitioner's application for leave to appeal the Appellate Division's decision to the New York Court of Appeals was denied on March 12, 1998. Petitioner subsequently filed an application for reconsideration pro se. On May 13, 1998, petitioner was granted reconsideration, but his application for leave to appeal was again denied.
On December 17, 1998, petitioner pro se filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. On August 6, 1999, respondent submitted an affidavit and memorandum of law in opposition to that petition. By letter dated August 12, 1999, petitioner requested that his habeas papers be returned to him because he had yet to exhaust state court remedies. On August 23, 1999, I stayed the § 2254 petition pending further state court review, and also directed petitioner to notify this Court in writing of any final decision by the state court with respect to petitioner's application for post-conviction relief.
In June 2001, petitioner filed a motion pro se in the Supreme Court, Queens County, New York, to vacate his judgment of conviction. The Court denied the motion on September 20, 2001. By letter dated December 3, 2001, petitioner informed this Court that he intended to file an appeal from the Supreme Court's decision. However, petitioner filed no such appeal.
By letter dated January 29, 2009, petitioner applied to reopen his § 2254 petition for a writ of habeas corpus. Petitioner's present application is his first correspondence with the Court since December 2001. Respondent ...