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Faulkner v. Lempke

January 15, 2010

TERRANCE FAULKNER, PETITIONER,
v.
JOHN LEMPKE, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

A. Proceedings in State Court

Beginning on April 17, 2001, Petitioner, pro se Terrance Faulkner, along with a co-defendant, James Schwinn, were tried before a jury in Albany County Court with Albany County Court Judge Thomas A. Breslin presiding. See, generally, Transcript of Trial of Terrance Faulkner dated April 17, 2001 ("Trial Tr."). That trial arose out of a four-count indictment that an Albany County Grand Jury had previously returned, in which both Petitioner and Schwinn were charged with Attempted Murder in the First Degree, in violation of § 110.00 and § 125.27(l)(a)(vi) of the Penal Law of the State of New York ("Penal Law"); Conspiracy in the Second Degree, in violation of Penal Law § 105.15; and two counts of Assault in the First Degree, in violation of Penal Law §§ 120.10(1) and 120.10(3), respectively.*fn1

At the conclusion of that trial, the jury found Petitioner guilty of the first three charges in the indictment, but not guilty of the First Degree Assault count which charged a violation of Penal Law § 120.10(3). See Trial Tr. at 787-89.

On June 26, 2001, Petitioner appeared with counsel before Judge Breslin for sentencing. At that proceeding, the court sentenced Petitioner to an indeterminate term of twenty-five years to life imprisonment on his attempted murder conviction and lesser, concurrent sentences on his remaining convictions. See Transcript of Sentencing of Terrance Faulkner dated June 26, 2001, at 4.

Faulkner appealed the foregoing to the New York State Supreme Court, Appellate Division, Third Department; on January 11, 2007, that court affirmed Petitioner's convictions and sentences in all respects. See People v. Faulkner, 36 A.D.3d 1009 (3d Dep't 2007). On April 5, 2007, New York's Court of Appeals denied Petitioner's subsequent application, seeking leave to appeal to that court. See People v. Faulkner, 8 N.Y.3d 945 (2007). Petitioner did not file any other challenges to his conviction other than his direct appeal. See Dkt. No. 1 ("Petition") at ¶ 10.

B. The Current Action

Petitioner filed his habeas petition, pursuant to 28 U.S.C. § 2254, with the Court on November 11, 2008. See Petition.*fn2 In that pleading, Petitioner asserts that he is entitled to habeas relief because (1) the trial court's errors, including its charge to the jury on "identification," deprived him of his right to a fair trial; (2) his conviction was against the weight of the evidence; (3) he was denied his right to a speedy trial in the criminal matter below; and (4) his first degree assault conviction is a lesser included offense of the attempted murder conviction, and, therefore, the assault conviction must be dismissed. See Petition, Grounds One through Four.

On June 12, 2009, Respondent filed an amended memorandum of law in opposition to Petitioner's pleading, see Dkt. No. 13, together with certain state-court records relating to Petitioner's conviction, see Dkt. No. 12. In opposing Petitioner's petition, Respondent argues that Petitioner did not timely file this action. See Dkt. No. 12 at 20-24. Respondent additionally argues that Petitioner is procedurally barred from asserting several of the grounds he has raised in his petition and that all of his claims lack merit. See id. at 24-45.

II. DISCUSSION

A. Statute of Limitations Generally

Congress' enactment in 1996 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 S. Stat. 1214 (1996), brought about significant changes to the prisoner litigation landscape. One of those changes was the institution of a one-year statute of limitations applicable to habeas petitions filed after April 24, 1996. 28 U.S.C. § 2244(d). The law now provides, among other things, that

[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...


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