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Howard Prescod v. D. Brown

January 20, 2011

HOWARD PRESCOD, PETITIONER,
v.
D. BROWN, RESPONDENT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:

REPORT AND RECOMMENDATION

To the Honorable Sidney H. Stein, United States District Judge:

Pro se petitioner Howard Prescod seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his May 30, 1986 conviction in Supreme Court, New York County, of second degree murder, first and second degree robbery and second degree assault, and sentence of 29-2/3 years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5; see Dkt. No. 11: ADA Schlossberg Aff. Ex. B: 5/30/86 Sentencing Tr. ["S."].)

For the reasons set forth below, Prescod's petition should be denied as barred by the AEDPA's one year statute of limitations.

FACTS

As noted above, Justice Edwin Torres sentenced Prescod to 29-2/3 years to life imprisonment on May 30, 1986. (Dkt. No. 11: ADA Schlossberg Aff. Ex. B: S. 6-7.) Specifically, Justice Torres sentenced Prescod to 25 years to life on the murder count, 2-1/3 to seven years on each of the two assault counts to run consecutive to the murder sentence, and 8-1/3 to 25 years and 5 to 15 years on the two robbery counts, to run concurrent with the murder sentence. (S. 6-7; see also ADA Schlossberg Aff. Ex. C: Sentence & Commitment Forms.)

The First Department affirmed Prescod's conviction on April 28, 1988. People v. Prescod, 139 A.D.2d 976, 527 N.Y.S.2d 668 (1st Dep't 1988).*fn1 The New York Court of Appeals denied leave to appeal on September 6, 1988. People v. Prescod, 72 N.Y.2d 960, 534 N.Y.S.2d 674 (1988).

Some twenty years later, on July 15, 2008, Prescod filed a pro se motion in state court pursuant to C.P.L. § 440, challenging the imposition of consecutive sentences as a matter of state law. (ADA Schlossberg Aff. Ex. F: Prescod § 440 Motion.) On November 3, 2008, Justice Bruce Allen denied Prescod's § 440 motion, rejecting Prescod's claim that it was illegal, as a matter of state law, to impose consecutive sentences for the murder and assault counts. (ADA Schlossberg Aff. Ex. H: 11/3/08 Justice Allen Opinion.) On April 2, 2009, the First Department denied leave to appeal from Justice Allen's decision. (ADA Schlossberg Aff. Ex. J: 4/2/09 1st Dep't Cert. Denying Leave.) Prescod sought leave to appeal from the New York Court of Appeals. (ADA Schlossberg Aff. Ex. K.) The New York Court of Appeals dismissed his application "because the order sought to be appealed is not appealable." (ADA Schlossberg Aff. Ex. L: 5/7/09 N.Y. Ct. App. Cert. Dismissing Application.)

Federal Proceedings

On June 11, 2009, Prescod filed the instant petition. (Dkt. No. 2: Pet.)*fn2 Prescod's habeas petition raises the consecutive sentence claim he previously had raised in his C.P.L. § 440 motion. (Pet. ¶ 13 & attached CPL 440 Papers.)

On March 17, 2010, Chief Judge Preska directed Prescod to submit an affidavit showing why his petition was timely under the AEDPA. (Dkt. No. 3: 3/17/10 Order.) In response, Prescod stated that he first learned of an error in his sentencing on October 23, 2008, when the State responded to Prescod's § 440 motion. (Dkt. No. 4: Prescod 5/5/10 Aff. at p. 1.)*fn3 In a supplemental affidavit, Prescod stated that he was "consistently placed on 'keep-lock' (lock-down status) . . . , was repeatedly moved from one [prison] housing location to another [and] lost minimal amounts of the legal paper-work he had received . . . ." (Dkt. No. 6: Prescod 6/18/10 Aff. at p. 2.) Prescod gave some legal papers to a girlfriend who "eventually" stopped communicating with Prescod. (Prescod 6/18/10 Aff. at p. 2.)

In the late 1990s to the "early/mid" 2000s, Prescod started researching his case in the prison law library, and "surprisingly reconnected with the former girl-friend" who returned the legal paperwork she had. (Prescod 6/18/10 Aff. at p. 2.) Once he received that paperwork, he "expanded his [legal] research into the area of his sentencing structure, and happened upon the error discrepancy which are apparent within the record, as well as with-in the commitment order." (Prescod 6/18/10 Aff. at pp. 2-3.)*fn4

On November 24, 2010, the State responded to Prescod's habeas petition. (Dkt. No. 10: State Trial Tr.; Dkt. No. 11: State Answer & App'x, ADA Schlossberg Aff.; Dkt. No. 12: State Br.) The State asserted that Prescod's habeas petition should be dismissed as time barred. (State Br. at 8-16.) The State further argued that if the petition was not dismissed as time barred, it should be dismissed because Prescod's ...


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