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Eddie Rush v. John B. Lempke


February 2, 2011


The opinion of the court was delivered by: Joseph F. Bianco United States District Judge


JOSEPH F. BIANCO, District Judge: firearm in the first degree (N.Y. Penal Law

§ 265.09[1]), one count of criminal use of a Eddie Rush (hereinafter "Rush" or firearm in the second degree (N.Y. Penal "petitioner") petitions this Court pro se for a Law § 265.08[2]), and one count of criminal writ of habeas corpus pursuant to 28 U.S.C. possession of a weapon in the second degree § 2254, challenging his conviction in state (N.Y. Penal Law § 265.03). Petitioner was court. Petitioner was convicted in a sentenced to concurrent, determinate terms judgment rendered on May 20, 2003, of imprisonment, the longest of which was following a jury trial, in the County Court, twenty-five years.

Nassau County, of one count of burglary in the first degree (N.Y. Penal Law Petitioner challenges his conviction on § 140.30[4]), one count of grand larceny in the following grounds: (1) the trial court the third degree (N.Y. Penal Law § 155.35), denied his due process rights by shackling one count of grand larceny in the fourth him during trial; (2) the trial court degree (N.Y. Penal Law § 155.30[8]), two erroneously admitted an out-of-court counts of robbery in the first degree (N.Y. statement made by a non-testifying co-Penal Law § 160.15), one count of robbery defendant; (3) the trial court erroneously in the second degree (N.Y. Penal Law denied petitioner's request to proceed pro § 160.10[1]), one count of criminal use of a se; and (4) the sentence imposed upon him by the court was excessive.*fn1 Respondent Shortly after leaving the Vallely home, seeks to dismiss the instant habeas corpus petitioner and Eason were spotted by the petition because petitioner failed to file it police in the stolen vehicle nearby. (Tr. within the applicable statute of limitations 618-20.) Rush led pursuing police officers period provided by 28 U.S.C. § 2244(d)(1). on an erratic, high-speed chase, colliding The Court concludes that Rush's petition is with and sideswiping numerous vehicles, untimely under Section 2244(d)(1) and finds which ended when he rear-ended a car that there is no basis for equitable tolling or occupied by New York City detectives. (Tr. statutory tolling of the statute of limitations. 622, 626-27, 649-51.) During the chase, the In the alternative, the petition is denied in its passenger door of the car opened a few entirety on the merits. inches and closed again. (Tr. 623, 650-52.)

A loaded handgun was recovered near the

I. FACTUAL BACKGROUND site where petitioner collided with another vehicle, and was identified by the Vallelys The Court has adduced the facts below as the one displayed by one of the burglars. from the instant petition and underlying (Tr. 603-04, 671-73, 675.) record.

Petitioner and Eason were taken into On November 24, 2000, at about 1:45 custody and transported to the Fifth Precinct p.m., petitioner and an accomplice ("Eason" in Nassau County. At the stationhouse, or "accomplice"), masked and armed with Eason was searched and found in possession handguns, invaded the Malverne, New York, of house keys, car keys, and a mitten with home of John and Nonthawan Vallely and the word "Echo" written on white, reflective their five-month old son. (Tr. 552-53, 556, material on the back. (Tr. 681-82, 808-09, 599-602.)*fn2 Petitioner and Eason ordered the 827-29.) Detectives then returned to the Vallelys to remove their clothing, forced area around the Vallely home and them into the bathroom, and directed them discovered that the car keys recovered from to lie down on the floor on top of one Eason opened a blue-green Nissan Quest another. (Tr. 555-57, 602.) Petitioner and parked only 100 feet from the Vallelys' his accomplice left with the Vallelys' home. (Tr. 809-10.) automobile, cash, and a cell phone. (Tr. 554-55, 603.) The following day, on November 25, 2000, Rush and Eason were transported to detention from the 85th Precinct station mask, and on the front passenger's seat were II. PROCEDURAL HISTORY a pair of sunglasses and another black knit glove. (Tr. 725-32, 778-82.) Another glove A. State Court Proceedings was protruding from the compartment of the center armrest, and, near the gear shift On September 30, 2002, Rush and his detectives found an Ericson cell phone. (Tr. co-defendant Eason pled guilty before the 725-32, 778-82.) Detectives also found a Supreme Court, Bronx County, to the charge mitten with the word "Echo" written on of reckless endangerment in the first degree. white, reflective material, on the right, rear Petitioner admitted to stealing the car that passenger seat of the car. (Tr. 725-34.) both he and Eason were found in at approximately 2:30 p.m. on November 24, At trial, the Vallelys identified the two 2000, in the vicinity of the Bruckner ski masks found in the stolen vehicle as the Expressway. (Tr. 843-44; Resp't's Merits ones worn by the robbers. (Tr. 561-62, Opp. dated May 12, 2010 ("Resp't's Merits 604.) Mr. Vallely identified the Ericson cell Opp.") at 7-8, 20.) phone as the one stolen from him, (Tr. 558- 59), and Mrs. Vallely identified the gun that On January 24, 2003, a jury convicted was recovered near the area where the high- petitioner on all counts of the indictment speed chase ended as the silver handgun charging him with various acts of grand brandished by the burglars. (Tr. 603-04.) larceny, burglary, robbery, and weapons use The trial also included testimony from the and possession. (Tr. 1037-40.) Judgment officers and detectives involved in the high- was rendered on May 20, 2003. Petitioner speed chase, as well as testimony by the was sentenced to concurrent, determinate police officers who observed petitioner and terms of imprisonment, the greatest of which Eason in the stolen car. (Tr. 618-21, 648-51, was twenty-five years, with five years of 672-73, 707-10.) post-release supervision. Additionally, the court imposed restitution in the amount of As his only witness, petitioner called $6,624.62. Petitioner appealed his Detective Vito Schiraldi ("Detective conviction to the Appellate Division, Second Schiraldi") of the Forensic Evidence Bureau Department ("Appellate Division") arguing of the Nassau County Police Department. that: (1) the trial court erroneously denied Detective Schiraldi testified that he analyzed his request to proceed pro se; (2) the trial two hairs recovered from one of the ski court violated his due process rights by masks found in the car. One of the hairs shackling him during trial; (3) the trial court was approximately a centimeter long, the erroneously admitted a co-defendant's out-other about sixteen or seventeen centimeters of-court statement at trial; (4) the trial court long. (Tr. 864.) Detective Schiraldi incorrectly permitted the use of plea testified that one of the hairs was of mixed admissions at trial before he could attempt racial origin. (Tr. 864.) Although a hair to challenge the voluntariness of those sample was taken from Rush for admissions; and (5) the sentence imposed on comparison, Detective Schiraldi said that Rush was unduly excessive and harsh. On Rush's hair sample was too short to produce October 9, 2007, the Appellate Division any conclusive DNA information, and was affirmed the judgment of conviction. therefore unsuitable for comparison. (Tr. People v.Rush, 843 N.Y.S.2d 392, 392-93 864-65.) (App. Div. 2007). The New York State Court of Appeals denied petitioner's application for leave to appeal on December B. The Instant Petition 20, 2007. People v. Rush, 880 N.E.2d 883 (N.Y. 2007). Petitioner did not petition the On July 23, 2009,*fn3 pro se petitioner filed United States Supreme Court for a writ of the instant application before this Court for a certiorari. writ of habeas corpus. On September 29, 2009, respondent filed a motion to dismiss On July 28, 2008, petitioner was the petition as untimely. On February 23, transferred to New Jersey, Hudson County, 2010, petitioner filed his opposition to the in anticipation of trial on an unrelated motion to dismiss. On April 12, 2010, this matter. Petitioner wrote a letter notarized on Court ordered the parties to brief the merits October 15, 2008, to the Clerk of Court of of petitioner's application for habeas corpus. the Southern District of New York, On May 12, 2010, respondent filed a requesting an extension of time to file his declaration and memorandum of law in habeas petition "until I have been returned opposition to the petition. On May 19, TO THE New York Prison system" so that 2010, the petitioner requested an additional he may have access to his "legal property" thirty days to file his reply to respondent's necessary for him to "process" his habeas opposition. By letter dated July 9, 2010, the petition. (Habeas Pet. at 8.) It is unclear if petitioner requested another extension, this letter was ever sent to or received by the which was granted. Petitioner filed his reply Clerk's Office in the Southern District of on August 24, 2010. The Court has fully New York. Petitioner subsequently filed a considered the submissions and arguments letter with the Southern District of New of the parties.

York on June 11, 2009, indicating that he was "returned back to the N.Y.S. III. DISCUSSION

Department of Correctional [sic]" on May 28, 2009, and once again requested an A. Standard of Review extension to file his habeas petition. (Habeas Pet. at 9.) To determine whether petitioner is entitled to a writ of habeas corpus, a federal On July 14, 2009, petitioner filed a court must apply the standard of review set motion to vacate his conviction pursuant to forth in 28 U.S.C. § 2254, as amended by New York Criminal Procedure Law the Antiterrorism and Effective Death § 440.10. This motion was denied by the Penalty Act ("AEDPA"). Section 2254 County Court as procedurally barred and requires that federal courts apply a meritless on October 13, 2009. People v.

Rush, No. 404N-01 (County Court, Nassau claims that he mailed the petition on July 23, 2009. (Pet'r's Resp. to Resp't's Mot. to Dismiss dated Feb. 23, 2010 ("Pet'r's Resp.") at 5.) In accordance with the prison mailbox rule, see Houston v. Lack, 487 U.S. 266, 270-71, 273-74, 276 (1988); Hill v. Senkowski, 409 F. Supp. 2d 222, 229 (W.D.N.Y. 2006), and construing all facts in favor of petitioner, the non-moving party, the Court assumes for purposes of this decision that the petition was filed on July 23, 2009.


(d) An application for a writ of habeas corpus on behalf of a person AEDPA establishes a deferential in custody pursuant to the judgment standard of review-"a federal habeas court of a State court shall not be granted may not issue the writ simply because that with respect to any claim that was court concludes in its independent judgment adjudicated on the merits in State that the relevant state-court decision applied court proceedings unless the clearly established federal law erroneously adjudication of the claim-- or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe,(1) resulted in a decision that was 260 F.3d 87, 93 (2d Cir. 2001) (quoting contrary to, or involved an Williams, 529 U.S. at 411). The Second unreasonable application of, clearly Circuit has noted that although "[s]ome established Federal law, as increment of incorrectness beyond error is determined by the Supreme Court of required . . . the increment need not be great; the United States; or otherwise, habeas relief would be limited to state court decisions so far off the mark as to(2) resulted in a decision that was suggest judicial incompetence." Gilchrist, based on an unreasonable 260 F.3d at 93 (quoting Francis S. v. Stone, determination of the facts in light of 221 F.3d 100, 111 (2d Cir. 2000)). the evidence presented in the State court proceeding. B. Statute of Limitations"Clearly established Federal law" is Respondent seeks to dismiss the instant comprised of "the holdings, as opposed to habeas corpus petition because petitioner the dicta, of [the Supreme] Court's decisions failed to file it within the applicable statute as of the time of the relevant state-court of limitations period provided by 28 U.S.C. decision." Green v. Travis, 414 F.3d 288, § 2244(d)(1). For the reasons set forth 296 (2d Cir. 2005) (quoting Williams v. below, this Court concludes that Rush's Taylor, 529 U.S. 362, 412 (2000)). petition is untimely under Section 2244(d)(1) and finds that there is no basis A decision is "contrary to" clearly for equitable tolling or statutory tolling of established federal law, as determined by the the statute of limitations.

Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the The AEDPA imposes a one-year statute Supreme Court] on a question of law or if of limitations on state prisoners seeking the state court decides a case differently than habeas corpus review in federal court. 28 [the Supreme Court] has on a set of U.S.C. § 2244(d)(1). The statute begins to materially indistinguishable facts." run from the latest of: Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly (A) the date on which the established federal law if a state court [petitioner's] judgment [of "identifies the correct governing legal conviction] became final by the conclusion of direct review or the In the instant case, petitioner concedes expiration of the time for seeking that the statute of limitations began to run on such review; the date petitioner's conviction became final, pursuant to Section 2244(d)(1)(A), (B) the date on which the because the other sections of AEDPA are impediment to filing an application inapplicable to his case. (Pet'r's Resp. to created by State action in violation Resp't's Mot. to Dismiss dated Feb. 23, of the Constitution or laws of the 2010 ("Pet'r's Resp.") at 8.) On December United States is removed, if 20, 2007, the New York Court of Appeals applicant was prevented from filing denied petitioner's application for leave to by such State action; appeal. Pursuant to Supreme Court Rule 13(1), the time for petitioner to seek review (C) the date on which the in the United States Supreme Court expired constitutional right asserted was ninety days later. See Williams v. Artuz, 237 initially recognized by the Supreme F.3d 147, 150 (2d Cir. 2001) ("[A] Court, if the right has been newly petitioner's 'conviction bec[omes] final for recognized by the Supreme Court [AEDPA] purposes when his time to seek and made retroactively applicable direct review in the United States Supreme to cases on collateral review; or Court by writ of certiorari expire[s].'"

(quoting Ross v. Artuz, 150 F.3d 97, 98 (2d (D) the date on which the factual Cir. 1998)) (alterations in original)). predicate of the claim or claims Accordingly, petitioner's conviction became presented could have been final and the one-year statute of limitations discovered through the exercise of period began to run on March 19, 2008. due diligence. Petitioner concedes that he therefore had "until March 19th, 2009 to file his 2254 28 U.S.C. § 2244(d)(1)(A)-(D). Pursuant to [habeas] petition pursuant to AEDPA of AEDPA, "[t]he time during which a 1996. Unless, as here, he can establish: a properly filed application for State post- rare and exceptional circumstance, that conviction or other collateral review with would warrant . . . tolling." (Pet'r's Resp. at respect to the pertinent judgment or claim is 8 (quotation marks and citation omitted).) pending shall not be counted toward any Accordingly, the Court concludes that the period of limitation." 28 U.S.C. § one-year limitations period for filing 2244(d)(2). The Second Circuit has held petitioner's habeas petition expired on that a state court application or motion for March 19, 2009, a little over four months collateral relief is "'pending' from the time before Rush filed his petition on July 23, it is first filed until finally disposed of and 2009. further appellate review is unavailable under the particular state's procedures." Bennett v. Despite petitioner's assertions to the Artuz, 199 F.3d 116, 120 (2d Cir. 1999); see contrary, the statute of limitations period also Carey v. Saffold, 536 U.S. 214, 217, should not be tolled in petitioner's case. As 220-21 (2002); Smith v. McGinnis, 208 F.3d noted above, the Court recognizes that, 13, 17 (2d Cir. 2000); Gant v. Goord, 430 F. pursuant to 28 U.S.C. § 2244(d)(2), the Supp. 2d 135, 138 (W.D.N.Y. 2006). statute of limitations does not start to run during the time other post-conviction applications in state court are pending. See 28 U.S.C. § 2244(d)(2). In the instant case, 1. Equitable Tolling however, petitioner made no collateral state court motions until July 14, 2009. Although the instant petition is untimely, Therefore, his one-year limitations period in "rare and exceptional" circumstances, the had already expired at that time and, thus, one-year statute of limitations is subject to his state court motion did not alter the time equitable tolling. See Smith v. McGinnis, the statute of limitations began to run. See, 208 F.3d 13, 17 (2d Cir. 2000); see also e.g., Perez v. Bennett, No. 99 Civ. 2475 Warren v. Garvin, 219 F.3d 111, 113 (2d (SAS), 1999 WL 553782, at *2 (S.D.N.Y. Cir. 2000). In order to obtain the benefit of July 29, 1999) ("From April 24, 1996 until equitable tolling, a petitioner must March 1998, however, petitioner did not demonstrate that: (1) "extraordinary take any action in the state or federal courts. circumstances prevented him from filing his Thus, by the time that petitioner filed his petition on time"; and (2) he "acted with second Rule 440 motion in or around March reasonable diligence throughout the period 1998, he was already time barred . . . from he seeks to toll." Smith, 208 F.3d at 17. filing any § 2254 petition."). The petition is The petitioner bears the burden to untimely despite Rush's arguments that affirmatively show that he is entitled to equitable and statutory tolling should be equitable tolling. See Tho Dinh Tran v. applied to his case so that his late petition Alphonse Hotel Corp., 281 F.3d 23, 37 (2d may be deemed timely. Petitioner offers a Cir. 2002), superseded on other grounds, variety of excuses for the fact that he did not Slayton v. Amer. Exp. Co., 460 F.3d 215, submit his petition within the one-year 228 (2d Cir. 2006); Hizbullahankhamon v. statute of limitations period. Specifically, Walker, 105 F. Supp. 2d 339, 344 (S.D.N.Y. Rush claims that he is entitled to equitable 2000). relief because he was not allowed to take his New York court documents with him when Petitioner argues that the period he was he was transferred to New Jersey on an held in New Jersey on unrelated claims from unrelated claim. (Pet'r's Resp. at 9.) Rush July 28, 2008 to May 28, 2009, (Pet'r's asserts that he used reasonable diligence to Resp. at 11), should be tolled because he had preserve his right to file a habeas petition by limited access to his New York court asking the Southern District of New York documents during that time due to prison for an extension to file the petition in a letter transfer policies. However, a petitioner's dated October 15, 2008. (Id. at 15-16.) In lack of access to legal materials or court the alternative, petitioner claims that he is documents does not warrant equitable entitled to statutory tolling under 28 U.S.C. tolling. See Warren v. Kelly, 207 F. Supp. § 2244(d)(1)(B), because the state created an 2d 6, 10 (E.D.N.Y. 2002) (holding that unconstitutional impediment to his filing on prison transfers or restricted access to the time by not allowing him to take his legal law library and inability to secure court documents with him when transferred to documents do not qualify as extraordinary New Jersey. (Id. at 13-14.)The Court circumstances); Hizbullahankhamon, 105 F. concludes that petitioner's case does not Supp. 2d at 344 ("To meet the standards of present extraordinary circumstances extraordinary circumstances, petitioner must warranting either equitable tolling or be able to prove that the cause of his delay statutory tolling under Section was both beyond his control and 2244(d)(1)(B). unavoidable even with diligence," noting that inability to access law library was not such extraordinary circumstance) (citing Bennett, 188 F. Supp. 2d 347, 354 (S.D.N.Y. Atkins v. Harris, No. 98 Civ. 3188, 1999 2002) ("[L]ack of legal knowledge cannot WL 13719, at *2 (N.D. Cal. Jan. 7, 1999)). excuse a delay in filing a petition."); see Nor does a prisoner's lack of legal also Turner v. Johnson, 177 F.3d 390, 392 knowledge or legal assistance entitle him to (5th Cir. 1999) (holding that petitioner's equitable tolling. See, e.g., Romero v. unfamiliarity with the legal system or lack Ercole, No. 08-CV-4983 (RRM), 2009 WL of representation does not warrant equitable 1181260, at *5 (E.D.N.Y. Apr. 30, 2009) tolling); Barrow v. New Orleans Steamship (collecting cases); Atkins, 1999 WL 13719 Ass'n, 932 F.2d 473, 478 (5th Cir. 1991); at *2 ("Prisoners familiar with the routine James v. U.S. Postal Serv., 835 F.2d 1265, restrictions of prison life must take such 1267 (8th Cir. 1988). Indeed, "[e]ven if matters into account when calculating when [pro se petitioner] did not have all the to file" their habeas petition.). Petitioner necessary materials or experienced a delay argues that he was unaware of the statute of in obtaining them, those are not limitations period for filing his habeas extraordinary circumstances warranting petition and, with the advice of unnamed equitable tolling. Moreover, even if the counsel, sent the October 15, 2008, letter to delays in receiving whatever documents he the Clerk of Court in the Southern District of believed necessary could be considered New York requesting an extension to file his extraordinary, [petitioner] has not shown habeas petition for fear of missing a possible that he made any effort to file his petition deadline. (Pet'r's Resp. at 15-16, n.2.) Yet without them . . . ." Padilla v. United States, petitioner told prison officials that he had a Nos. 02 Civ. 1142 (CSH), 94 CR. 313 pending habeas deadline. (Pet'r's Resp. at (CSH), 2002 WL 31571733, at *4 (S.D.N.Y. 9; see also Section III.B.2) In any event, the Nov. 19, 2002); see Davis v. McCoy, No. 00 lack of familiarity with the law or pro se CIV. 1681 (NRB), 2000 WL 973752, at *2 status alone does not warrant equitable (S.D.N.Y. July 14, 2000) (petitioner's lack tolling. See Smith, 208 F.3d at 18 (holding of access to necessary court papers for two that petitioner's pro se status does not years did not constitute an extraordinary establish sufficient ground for equitable circumstance); Fadayiro v. United States, 30 tolling); Ayala v. Miller, No. 03 CV F. Supp. 2d 772, 779 (D. N.J. 1998) 3289(JG), 2004 WL 2126966, at *2 (inability to obtain transcripts and other (E.D.N.Y. Sept. 24, 2004) ("Neither a records needed for habeas petition did not [petitioner's] pro se status, nor his lack of rise to the level of "extraordinary expertise, provides a basis for equitable circumstances" so as to justify equitable tolling of AEDPA's statute of limitations."); tolling).

Gillyard v. Herbert, No. 01 Civ. 3427(DC)(GWG), 2003 WL 194692, at *3 Petitioner relies on Lott v. Mueller, 304 (S.D.N.Y. Jan. 30, 2003) (stating that F.3d 918 (9th Cir. 2002), in an attempt to petitioner's pro se status, and concomitant establish that he is entitled to equitable ignorance of the law, does not equitably toll tolling because he was denied access to legal the statute of limitations period (listing files. (Pet'r's Resp. at 13, 17.) However, in cases)); Francis v. Miller, 198 F. Supp. 2d that case, the Ninth Circuit found that the 232, 235 (E.D.N.Y. 2002) (stating that "unusual facts" of that petitioner's ignorance of the law and legal procedure is circumstances, which included denial of not an extraordinary circumstance access to his legal files due to multiple warranting equitable tolling); Wilson v. prison transfers, might have warranted equitably tolling the statute of limitations. Goord, 430 F. Supp. 2d 135, 139 (W.D.N.Y. Id. at 924-25. In Lott, petitioner's 2006) (collecting cases). application was filed only between seven and twenty days late. Id. at 921-24. The Even assuming arguendo in this case court further rested its holding on the fact that the prison transfer and inability to that petitioner did not know that the filing access legal materials constituted an deadline for his habeas petition was actually extraordinary circumstance preventing thirty days later than the date on which he petitioner from filing his petition on time, thought it was due because of a forthcoming there must be a "causal relationship between decision from the Ninth Circuit that affected the extraordinary circumstances on which the deadline. Id. at 922-23. Specifically, the the claim for equitable tolling rests and the court noted that "[e]ven with the benefit of lateness of his filing, a demonstration that legal training, ready access to legal materials cannot be made if the petitioner, acting with and the aid of four years of additional case reasonable diligence, could have filed on law, an informed calculation of [petitioner's] time notwithstanding the extraordinary tolling period evaded both his appointed circumstances." Valverde v. Stinson, 224 counsel and the expertise of a federal F.3d 129, 134 (2d Cir. 2000). Petitioner magistrate judge." Id. at 923. Accordingly, argues he demonstrated reasonable diligence the Lott case is far from analogous to the by writing to the Southern District of New instant matter. York asking for an extension of time to file his habeas petition via letter dated October The Court further notes that petitioner 15, 2008. Even assuming that petitioner makes no claim that the prison's actions, by sent this request, he cannot establish withholding his files, constituted an reasonable diligence because he waited intentional attempt to impede petitioner's approximately seven months to request an ability to timely file his petition. On the extension of time after leave to appeal was contrary, petitioner's papers indicate that the denied by the Court of Appeals. See Smith, prison was merely following well- 208 F.3d at 17-18 (reasoning that established procedures regarding prison petitioner's 87-day delay in seeking transfers. (Pet'r's Resp. at 10-11.) collateral review was not reasonably Petitioner was even given the opportunity to diligent); Hizbullahankhamon, 105 F. Supp. confirm these policies with a supervisor who 2d at 344 (S.D.N.Y. 2000) (holding the is "quite intimate with [all] D.O.C.S.' petitioner's 279-day delay in filing his first policies and procedures relating to property collateral attack is fatal to a claim of transfers and storage." (Id. at 10.) This equitable tolling). Further, petitioner could supervising officer confirmed that an inmate have filed his habeas petition before he was is not permitted to travel with legal sent to New Jersey. Petitioner had full paperwork not related to the receiving access to all legal materials from December jurisdiction. (Id.) As already stated above, 20, 2007, the date on which leave to appeal in this Circuit, "[i]n general, the difficulties was denied, until July 27, 2008, when he attendant on prison life, such as transfers was transferred to New Jersey, and offers no between facilities, solitary confinement, explanation as to why he could not file his lockdowns, restricted access to the law petition during those months. In addition, library, and an inability to secure court after sending a letter to the Southern District documents, do not by themselves qualify as of New York, petitioner never followed-up extraordinary circumstances." Gant v. to inquire about the status of his request; without confirmation that the letter had been 2. Statutory Tolling received and his request had been granted, petitioner had no reason to assume that the As noted above, petitioner also argues statute of limitations was stayed for this that the statute of limitations should be period of time. Cf. Lewis v. Walsh, No. 03 tolled because the state created an Civ. 1932 (DC), 2003 WL 21729840, at *3 unconstitutional impediment that prevented (S.D.N.Y. July 25, 2003) ("Nor can Rush from timely filing his habeas petition. petitioner show that he was reasonably Under 28 U.S.C. § 2244(d)(1)(B), AEDPA's diligent during the limitations period. statute of limitations period may be tolled Petitioner argues that he worked diligently during the time that a state-created to file his petition long before his time unconstitutional impediment prevents the expired. Exhibits A-J of the petitioner's petitioner from filing a petition. See affirmation are letters from as far back as Crawford v. Costello, 27 F. App'x 57, 59 1994 regarding petitioner's requests for (2d Cir. 2001). In order to invoke Section documents to prepare a complete habeas 2244(d)(1)(B), a petitioner must show that corpus petition. These letters do not "(1) he was prevented from filing a petition sufficiently demonstrate diligence to warrant (2) by State action (3) in violation of the equitable tolling." (citation omitted)). Constitution or federal law." Egerton v.Cockrell, 334 F.3d 433, 436 (5th Cir. 2003); In sum, petitioner's arguments regarding see also Bush v. Lantz, No. 3:06-CV-410 his pro se status and his lack of access to his (RNC), 2009 WL 522940, at *1 (D. Conn. legal materials do not warrant equitable Mar. 2, 2009). "Withholding a prisoner's tolling, nor has petitioner made a claim or legal papers and failing to provide him with showing of actual innocence. See Whitley v. access to library materials may provide a Senkowski, 317 F.3d 223, 225 (2d Cir. 2003) basis for relief under § 2244(d)(1)(B). But (holding that it was an error to dismiss a impediments of this nature do not 'prevent' petition claiming actual innocence, on a petitioner from filing on time when the statute of limitations grounds, without petitioner makes no attempt to obtain legal further analysis). Further, petitioner did not papers and library materials despite having act with reasonable diligence when he failed an ability to do so." Bush, 2009 WL to file his habeas petition while still in a 522940, at *1. Here, petitioner had New York prison and when he failed to approximately seven months between the assure that his request for an extension was date on which he was denied leave to appeal granted. At a minimum, petitioner could to the Court of Appeals and when he was have avoided this statute of limitations issue transferred to the New Jersey facility. if he had diligently and timely filed his Petitioner did not file his habeas petition, habeas petition even if he lacked his legal nor request an extension of the statute of materials, and then supplemented his limitations, during that time. Thus, it petition with additional material when he cannot be said that petitioner's denial of regained access to such documents. access to his legal files once he was Accordingly, the Court concludes that there transferred to the New Jersey facility was a are no grounds for equitable tolling. state-created impediment to him filing a timely petition. See Scott v. Comm'r of Corr., No. 3:07-CV-1420 (CSH), 2008 WL 5172644, at *2 (D. Conn. Dec. 10, 2008) (court concluded that lack of access to legal files was not a state-imposed impediment, statute of limitations. Egerton does not noting that Scott's "prison's lack of federal support Rush's argument. materials in its law library and of assistance to prisoners filing state habeas petitions do * * * not constitute state-imposed impediments under 28 U.S.C. § 2244(d)(1)(B)."); Ramos In sum, the Court concludes that Rush's v. Walker, No. 99 Civ. 5088(LAK), 2002 petition is time-barred. Petitioner's WL 31251672, at *2 (S.D.N.Y. Oct. 8, conviction became final on March 19, 2008. 2002) (denying relief when petitioner made He filed the instant motion on July 23, 2009, "no suggestion, for example, that he could approximately four months after the onenot have redrafted any petition that may year filing window ended. There is no basis have been lost as a result of the action of for equitable tolling or statutory tolling. prison authorities or that he could not have However, in an abundance of caution, the obtained copies of state court briefs, Court also has examined petitioner's transcripts or other papers that might have arguments on the merits. As set forth below, been required for that purpose"). even assuming arguendo that the petition is not time-barred, it should nevertheless be Petitioner's reliance on Egerton v. dismissed on the merits.

Cockrell, 334 F.3d 433 (5th Cir. 2003), is misplaced. (Pet'r's Resp. at 12.) In that C. Merits Analysis case, the law library was inadequate because it did not contain a copy of AEDPA, so 1. Petitioner's Leg Restraints at Trial petitioner arguably had no knowledge of the statutory limitations period applicable to The first ground for the instant habeas him. The state did not provide that petition concerns the leg restraints that information, and the court found that this bound petitioner during his trial. Petitioner constituted a state-created impediment claims that his due process rights were pursuant to Section 2244(d)(1)(B). Id. at violated because he remained shackled at 438. However, despite petitioner's trial, in presence of the jury. As set forth suggestion that he was unaware of the below, this claim is meritless and does not statute of limitations deadline, (Pet'r's Resp. entitle petitioner to habeas relief. at 15-16, n.2), there is contrary evidence suggesting he was aware of the AEDPA The use of visible shackles or out-of-deadline; in fact, he wrote to the Southern sight shackles of which the jury becomes District asking for an extension on October "aware" during either the guilt phase or the 15, 2008, five months prior the expiration of penalty phase of a trial may constitute a the one-year limitations period. Also, when violation of the defendant's right to due petitioner was informed on July 27, 2008 process. See Deck v. Missouri, 544 U.S. that he would be transferred, he told prison 622, 626, 633, 634 (2005), abrogated on officials about his habeas deadline other grounds, Fry v. Pliler, 551 U.S. 112 obligations. (Pet'r's Resp. at 9.) Assuming, (2007). Specifically, it can compromise arguendo, that petitioner was unaware of the fundamental legal principles. First, visible statute of limitations period, he has not made shackling undermines the basic premise of any contention that the prison law library in our criminal justice system in which New Jersey lacked the federal materials that defendants are presumed innocent until he needed to learn about the applicable proven guilty. Id. at 630. If a defendant is shackled before a jury, it can suggest to the decision] to guards or other prison officials jury that "the justice system itself sees a but must decide that question for itself. If need to separate a defendant from the there is a dispute as to the record on which community at large." Id. (quotation marks the security questions are to be determined, omitted). Second, the use of shackles can the court should be willing to receive diminish a defendant's right to counsel by evidence. The court must impose no greater interfering with the defendant's "ability to restraints than are necessary, and it must communicate with his lawyer." Id. at 631 take steps to minimize the prejudice (quotation marks omitted). Similarly, resulting from the presence of the shackles may interfere with a defendant's restraints." Hameed v. Mann, 57 F.3d 217, ability to participate in his own defense by 222 (2d Cir. 1995) (citing Lemons v. preventing him from taking the witness Skidmore, 985 F.2d 354, 356-59 (7th Cir. stand. Id. Further, the use of shackles may 1993))(addressing shackling in a civil case constitute an "affront [to] the dignity and brought by a prisoner); see also Davidson v. decorum of judicial proceedings." Id. Riley, 44 F.3d 1118, 1125 (2d Cir. 1995) (quotation marks omitted). (lower court should have conducted an evidentiary hearing in civil case brought by Nonetheless, shackling is unavoidable in prisoner where colloquy "strongly indicated circumstances where it may be necessary "to the need for an evidentiary hearing as to restrain dangerous defendants to prevent whether Davidson was an escape risk[.]"); courtroom attacks." Id. at 632. Further, Sides v. Cherry, 609 F.3d 576, 582 (3d Cir. there is a recognized "need to give trial 2010) (in the context of a civil suit brought courts latitude in making individualized by a prisoner, analyzing criminal caselaw, security determinations." Id. When a court court concluded that a trial judge must "hold justifiably orders that the defendant be a proceeding outside the presence of the jury shackled, the defendant suffers no prejudice to address [shackling] with counsel. if the court takes precautions to keep the However, where there are genuine and restraints hidden from the jury. See material factual disputes regarding the threat Mendoza v. Berghuis, 544 F.3d 650, 651, to courtroomsecurity posed by a prisoner[], 654-55 (6th Cir. 2008) (finding that a an evidentiary hearing is called for."). "In defendant who was deemed to be both a determining whether an unnecessary flight and security risk suffered no prejudice imposition of restraints was harmless, [a when the trial court skirted both counsel court must] weigh several factors, including tables with brown paper to prevent the jury the strength of the case in favor of the from seeing defendant's shackles); United prevailing party and what effect the States v. Bin Laden, No. S7R 98 restraints might have had in light of the CR1023KTD, 2005 WL 287404, at *3-4 nature of the issues and the evidence (S.D.N.Y. Feb. 7, 2005) (holding the involved in the trial." Hameed, 57 F.3d at defendant was not prejudiced when the trial 222; see also Sides, 609 F.3d at 582; court took precautions to keep restraints Lemons, 985 F.2d at 359. hidden from the jury, including placing an apron around defense counsel's table to In the instant case, the court was prevent the jury from seeing the shackles). informed at a pretrial hearing, held on February 25, 2002, of petitioner's threat that In determining if shackling is necessary, "the first chance he'd get, he'd run; and that "the court cannot properly delegate [the he'd kill a staff member with his own gun." led to the computer entry in question and a (Hearing*fn4 at 6.) The trial judge stated: printout of the computer record was never provided. (Tr. 14.) Defense counsel argued It has come to my attention . . . that that a hearing on the shackling issue had to the jail was informed by Sergeant be held in light of the fact that Rush denied Disler who's the police liaison that he made any of the statements that were officer in District Court, and she the subject of the computer record in made a statement which I understand question and in light of the fact that Rush is in the computer of the correctional was never actually "received a write-up or facility[, Nassau County Correctional any disciplinary action as the result of any Center]. And this was given to my such entry being made in the Sheriff's sergeant, Sergeant McDonough, Department computer." (Tr. 17; see also id. through a Sergeant D'Amato who at 15.) The trial judge acknowledged that it works for the correctional facility. was in his discretion to shackle Rush or not, And, the statement was something to (id. at 15-16), and noted that "we had some the effect that Mr. Rush would run witnesses that actually went on the record at the first chance he gets and kill a that point and explained to us exactly what staff member with his gun. the threat was." (Tr. 16.) To avoid any prejudice to petitioner, both counsel's tables (Id. at 5-6.) Sergeant McDonough were lined with brown paper table skirts so subsequently testified on the record that he that there would be "no reason that any spoke with both Sergeant D'Amato and member of the jury would think that the Sergeant Disler, and described the defendant in any way is shackled." (Tr. 18.) statements made by Sergeant Disler to jail Further, petitioner's hands were not authorities about Rush, which ended up in restrained in any way, and when petitioner the computer records at the correctional stood to give his opening statement, the center. (Id. at 6.) The trial judge noted that counsel table was turned so that the jurors "according to the correction people, . . . were unable to see that Rush's legs were [Rush is] listed as [an] escape risk[]. And shackled. (Tr. 13, 490, 512.) this is, as I understand through the correction officers and through the court Petitioner concedes that his shackles officers, that when a defendant is an escape were not visible to the jury. (Pet'r's Merits risk, they come up in leg shackles." (Id. at Resp. at 3.) However, he argues that even 8.) Although the court acknowledged that it where the shackles are not visible, a trial was unable to determine the credibility of judge must "determin[e] facts necessary to the statements in the computer record, the justify application of restraints." (Id. at 4.) judge stated that he was compelled to take Rush asserts that the trial judge abused his the threat seriously. (Id. at 6.) Petitioner's discretion by "applying restraints [in his counsel consented to proceed with his client case] without a justifiable determination on in shackles but "for the purposes of this the record." (Id. at 8; see also id. at 6.) hearing only." (Id. at 7.) At the trial, Petitioner argues that he never made defense counsel pointed out that the statements that were the basis for the trial testifying court officer did not have any judge's determination that he was a safety first-hand knowledge about the events that him the right to challenge the credibility of risk and the trial judge erroneously denied the statements against him by: (1) not ordering the production of the computer the evidence of his guilt.*fn5 See Hameed v. record with the alleged statements made by Mann, 57 F.3d 217, 224 (2d Cir. 1995) Rush, and (2) by not allowing Rush to (even where petitioner was erroneously question witnesses with first-hand shackled and the shackles were visible to the knowledge about how the statements jury at times during the trial, any error by allegedly made by Rush were entered into the trial judge was harmless); Sides, 609 the computer system. (Id. at 7-8.) Rush F.3d at 584 ("We need not determine argues that in failing to assess the credibility whether the District Court abused its of statements made against him, after discretion here, however, as we conclude requests by defense counsel to hold a that any error was harmless.")Petitioner hearing, the trial judge inappropriately was observed in the stolen vehicle minutes "deferred discretion to court staff," (id. at after the crime, just before he and Eason led 11), especially in light of the fact that some the police on a chase through three counties, officers involved in the pretrial hearing had the Vallelys identified the ski masks that "special interest" in getting attention that were found in the stolen vehicle as the should have undermined their own masks that had been worn by the two credibility. (Id. at 19-20.) Finally, intruders, and Mr. Vallely's stolen cell petitioner asserts that the trial judge phone was also found inside the vehicle. inappropriately failed to provide a "curative Further, Mrs. Vallely identified the gun instruction[]" to the jury to minimize the found near the crash site of the vehicle prejudice of shackling, (id. at 7), in light of driven by petitioner and Eason as the the fact that the jury must have become weapon brandished by the intruders. aware of Rush's shackles because they made Additionally, on September 30, 2002, in the noise when he stood up to address the Court Supreme Court, Bronx County, in and because during voir dire, some members connection with his guilty plea to first-of the jury heard petitioner exclaim that his degree reckless endangerment, petitioner shackles were hurting him. (Id. at 25, 29- admitted, under oath, that he and Eason had 30.) stolen the vehicle that he was in at approximately 2:30 p.m. on November 24,As a threshold matter, there is no 2000. Cf. Cotto v. Mann, 991 F. Supp. 124, evidence in the record to support that the 131, 133, 136 (E.D.N.Y., 1998) (granting trial court abused its discretion in ordering habeas relief to petitioner whose conviction that shackles be used in this case. relied heavily on out-of-court statements Moreover, as discussed above, the shackles that were exceedingly prejudicial and where were not visible to the jury and precautions the remaining evidence against the petitioner were taken to avoid any prejudice to was likely insufficient to convict). petitioner. In any event, even assuming arguendo that petitioner is right and the trial judge abused his discretion in determining that shackles were necessary and in failing to take all appropriate measures to limit prejudice to petitioner, any errors were himself because he was not free to move around harmless because the evidence of the courtroom like the prosecutor, (Pet'r's petitioner's guilt is overwhelming and thus Merits Resp. at 32), that argument is also any allegedly prejudicial effect of the without merit because any error committed by shackles would have been outweighed by the trial judge in preventing petitioner from moving around the courtroom was harmless.

In short, the trial court's decision to barred, a federal habeas court may not allow petitioner to be placed in leg irons review the claim on the merits unless the during the trial, and the Appellate Division's petitioner can "demonstrate both cause for affirmance of that decision, were neither default and prejudice resulting therefrom, or contrary to nor an unreasonable application if he can demonstrate that the failure to of clearly established federal law. Similarly, consider the claim[] will result in a it was not an unreasonable determination of miscarriage of justice." Coleman, 501 U.S. the facts in light of the state court record. at 750. A miscarriage of justice is Accordingly, the claim for habeas relief demonstrated in extraordinary cases, such as based on the use of leg restraints at trial is where a constitutional violation results in the denied. conviction of an individual who is actually Petitioner argues that the state court Here, petitioner's second claim is erroneously admitted the testimony of a procedurally defaulted. In reviewing on detective alluding to an out-of-court direct appeal the petitioner's argument that statement made by Eason that he "shouldn't his confrontation rights were violated have thrown the gun out the window." (Tr. because the state court erroneously admitted 797.) The government asserts that this claim testimony about Eason's out-of-court is procedurally barred or, in the alternative, statement, the Appellate Division stated that is without merit. As set forth below, the the claim was "not preserved for appellate Court agrees. review" because petitioner failed to raise the claim at trial. See Rush, 843 N.Y.S.2d at a. Procedural Bar 393. Under New York Law, a claim is preserved for appellate review if the litigant A petitioner's federal claims may be raised the same claim before the trial court. procedurally barred from habeas corpus See N.Y. Crim. Proc. Law § 470.05(2) review if they were decided at the state level (McKinney 2009); People v. Medina, 53 on "adequate and independent" state N.Y.2d 951, 952 (N.Y. 1981). Furthermore, procedural grounds. Coleman, 501 U.S. at New York's preservation doctrine is firmly 749-50. The procedural rule at issue is established and regularly followed. See adequate if it is "firmly established and Garvey v. Duncan, 485 F.3d 709, 715-16 regularly followed by the state in question." (2d Cir. 2007). Failure to preserve an issue Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. for state appellate review is an adequate and 1999) (quotation marks omitted). The "state independent state procedural ground that court must actually have relied on the will preclude federal habeas review of the procedural bar as an independent basis for issue. Glen v. Bartlett, 98 F.3d 721, 724-25 its disposition of the case," Harris v. Reed, (2d Cir. 1996) (finding that failure to 489 U.S. 255, 261-62 (1989), by "clearly preserve issue for appeal was adequate and and expressly stat[ing] that its judgment independent state law ground precluding rests on a state procedural bar." Id. at 263 federal habeas review and further noting that (internal quotation marks omitted). If it "federal habeas review is foreclosed when a determines that a claim is procedurally state court has expressly relied on a procedural default as an independent and Washington, 541 U.S. 36 (2004)] does not adequate ground, even where the state court suggest otherwise."). The reference to the has also ruled in the alternative on the merits presumably incriminating out-of-court of the federal claim"); see also Fernandez v. statement was a small part of the Leonardo, 931 F.2d 214, 216 (2d Cir. 1991). prosecution's overall case. (Tr. 797-98, Petitioner's argument is therefore not 927-28.) Cf. Ellison v. Sachs, 769 F.2d 955, preserved for this Court's review because 956 (4th Cir. 1985) (holding that habeas the Appellate Division dismissed his relief was properly granted when the argument on procedural grounds, even prosecution relied very heavily on out-of-though it addressed the merits of Rush's court statements which were not at all claim in the alternative. reliable, violating the Confrontation Clause).

As noted earlier, the evidence of petitioner's Moreover, petitioner has demonstrated guilt was overwhelming. Petitioner was neither "cause and prejudice" for his observed in the stolen vehicle minutes after procedural default nor that failure to the crime, just before he and Eason led the consider the claim will result in a police on a chase through three counties, the miscarriage of justice, i.e., that he is actually Vallelys identified the ski masks that were innocent of the crimes for which he was found in the stolen vehicle as the masks that convicted. See Coleman, 501 U.S. at 748-51 had been worn by the two intruders, and Mr. (1991); Murray, 477 U.S. at 496. Vallely's stolen cell phone was also found Accordingly, petitioner's argument that inside the vehicle. Further, Mrs. Vallely testimony regarding Eason's out-of-court identified the gun found near the crash site statement should not have been admitted is of the vehicle driven by petitioner and Eason procedurally defaulted. as the weapon brandished by the intruders.

Additionally, on September 30, 2002, in the b. Merits Analysis Supreme Court, Bronx County, in connection with his guilty plea to first-Even if the claim here was not degree reckless endangerment, petitioner procedurally defaulted by plaintiff, and the admitted, under oath, that he and Eason had state court erred in allowing the detectives to stolen the vehicle that he was in at refer to Eason's out-of court-statement, any approximately 2:30 p.m. on November 24, error was harmless for purposes of habeas 2000. Cf. Cotto v. Mann, 991 F. Supp. 124, review. See Fry, 551 U.S. at 121 (holding 131, 133, 136 (E.D.N.Y., 1998) (granting that "in § 2254 proceedings a [federal] court habeas relief to petitioner whose conviction must assess the prejudicial impact of relied heavily on out-of-court statements constitutional error in a state-court criminal that were exceedingly prejudicial and where trial" by determining whether the error had a the remaining evidence against the petitioner "'substantial and injurious effect'" on the was likely insufficient to convict). In short, jury's verdict (quoting Brecht v. although this issue is procedurally defaulted, Abrahamson, 507 U.S. 619, 631 (1993))); were this Court to reach the merits and find see also United States v. McClain, 377 F.3d that the trial court committed error, any error 219, 222 (2d Cir. 2004) ("It is well would be harmless given the overwhelming established that violations of the evidence of petitioner's guilt. Accordingly, Confrontation Clause, if preserved for this claim does not provide a ground for appellate review, are subject to harmless habeas relief. The Appellate Division's error review, . . . and Crawford [v. determination was not contrary to, nor an unreasonable application of, clearly In addition to the defendant knowingly established federal law, and was not an and unequivocally raising the request to unreasonable determination of the facts in proceed pro se, the right of a defendant to light of the evidence presented in state court. represent himself at trial must be timely asserted. The Second Circuit has held that 3. Denial of Right to Proceed Pro Se the right to proceed pro se is unqualified "only if exercised before the commencement Petitioner also contends that he was of trial." United States v. Matsushita, 794 denied his right to self-representation. As F.2d 46, 51 (2d Cir. 1986) (quoting Sapienza set forth below, a review of the state court v. Vincent, 534 F.2d 1007, 1010 (2d Cir. record demonstrates that petitioner did not 1076)); see also United States v. Brown, 744 make an unequivocal and clear request to F.2d 905, 908 (2d Cir. 1984). In represent himself. Accordingly, the state Maldonado, the Second Circuit held that the court's initial rejection of this claim was not unqualified right of defendants to have their erroneous and does not provide a ground for requests to represent themselves granted habeas relief. exists until a jury is chosen and the case is ready for trial. 348 F.2d at 15-16. The court In Faretta v. California, the Supreme requires that defendants make timely Court held that the Sixth Amendment of the requests to proceed pro se to "ensure the United States Constitution grants a criminal orderly administration of justice and prevent defendant the right to represent himself at the disruption of both the pre-trial trial pro se. 422 U.S. 806, 819 (1975). proceedings and a criminal trial." Williams, "[T]he Supreme Court declared that this 44 F.3d at 99 (citing Sapienza, 534 F.2d at right may be exercised by all criminal 1010). Thus, after a defendant begins a trial defendants who knowingly, voluntarily, and where he is represented by counsel, the unequivocally waive their right to appointed Sixth Amendment right to proceed pro se is counsel." Johnstone v. Kelly, 808 F.2d 214, "sharply curtailed." Maldonado, 348 F.2d at 216 (2d Cir. 1986) (citing Faretta, 422 U.S. 15. Once the right to self representation at 835-36). In order for a defendant to becomes qualified, "[t]here must be a waive the right to counsel, there must be an showing that the prejudice to the legitimate initial request to proceed pro se that is clear interests of the defendant overbalances the and unequivocal. See Williams v. Bartlett, potential disruption of proceedings already 44 F.3d 95, 100 (2d Cir. 1994). Even if the in progress, with considerable weight being defendant asserts this right to self- given to the trial judge's assessment of this representation, the right may be balance." Id. The "reason for the request, subsequently waived if the defendant either the quality of the counsel representing the abandons the request altogether or vacillates party, and the party's prior proclivity to on the issue. Id. If courts allowed equivocal substitute counsel are all appropriate criteria requests, convicted criminals could easily to be factored into the balance." Sapienza, disrupt unfavorable verdicts rendered in 534 F.2d at 1010. trials where they were represented by counsel. See United States ex rel. As discussed in detail below, the Court Maldonado v. Denno, 348 F.2d 12, 16 (2d concludes that the record supports the state Cir. 1965). court's finding that petitioner was equivocal in his desire to proceed pro se. At no time prior to January 13, 2003, the fifth day of jury selection, when the judge granted untimely and not unequivocal. (Tr. 303.) petitioner's request to proceed pro se, did Accordingly, petitioner's assigned counsel petitioner state his request in a clear and conducted the jury selection for the unequivocal manner as required under well- remainder of the day. established Supreme Court and Second Circuit precedent. Thus, as discussed On the following Monday, January 13, below, Rush's claim that he was denied his 2003, no new counsel appeared to represent right to self-representation does not provide petitioner. The court informed counsel that a ground forhabeas relief. the allegedly newly retained attorney had spoken with chambers and informed the On January 7, 2003, at the start of jury judge that he would not, in fact, be selection, petitioner informed the court that representing the petitioner. (Tr. 401-02.) he wanted new counsel because his assigned Assigned counsel reiterated petitioner's counsel had not filed all of the motions that desire to proceed pro se, and that after petitioner wanted him to file and had not having spoken with petitioner that morning, visited him as often as petitioner would have counsel believed petitioner's request was liked. (Tr. 2-8.) Petitioner did not at that unequivocal. (Tr. 402-04.) The court then time state a desire to proceed pro se, but declared that "up until his point the Court instead asked for new counsel to be finds there has been no unequivocal waiver appointed. (Tr. 8.) When told by the judge on [petitioner's] part to go pro se. Rather, it that he did not possess the right to have the was [petitioner's] indication to the Court court assign the counsel of his choice, that he was going to be retaining new petitioner asked for time "to get another counsel. . . . [petitioner told the court that] attorney," which the court denied. (Tr. 8.) he wanted to go pro se until new counsel arrived. Since this was not an unequivocal Three days later, on January 10, 2003, request to go pro se, the Court denied it at which was the fourth day of jury selection, that point." (Tr. 404-05.) The court then petitioner advised the court, through his questioned petitioner about his desire to assigned counsel, that his family had spoken proceed pro se: with and retained another attorney, who would appear the following Monday. (Tr. [COURT]: However, I just want 298.) Petitioner, by way of his assigned the record to be clear that I'm counsel, then asked for a recess until that going to, at this point, question Monday so that his newly retained counsel you with respect to your ability would have an opportunity to participate in to go pro se, Mr. Rush. . . . First the voir dire. (Tr. 298.) Because neither the of all, will there be any other court nor petitioner's assigned counsel had attorneys that you will be any information regarding retained counsel desiring to retain at this point? who would appear that Monday to represent the petitioner, the court denied the request [DEFENDANT:] I need an for a recess. (Tr. 300-01.) Petitioner then advisor. declared, "I will go pro se until then. . . . I will go pro se, if I have to right now." (Tr. [COURT:] No. I'm talking about 302.) Following a break in the proceedings, an attorney to represent you at the court denied petitioner's request to this point. proceed pro se, characterizing the request as [DEFENDANT:] My family has As noted above, under Maldonado, the money to retain somebody. petitioner had an unqualified right to represent himself if he made a knowing and [COURT:] See, so you're telling unequivocal request to exercise that right in me you're going to retain an the pre-trial phase. Maldonado, 348 F.2d at attorney. Then you're now 15-16. However, Rush's initial statements telling me that you unequivocally in court did not show a "purposeful choice want to go pro se. I want to reflecting an unequivocal intent to forego know at this point -- yes, Mr. the assistance of counsel." Williams, 44 Rush? F.3d at 100 (quoting United States v.Tompkins, 623 F.2d 824, 827-28 (2d Cir. [DEFENDANT:] I'm telling you, 1980)). Before ever making reference to I'm going pro se. representing himself, petitioner first tried to have his counsel reassigned. The Court [COURT:] So, you will not be recognizes that "[a] request to proceed pro retaining any attorney, is that se is not equivocal merely because it is an what you're indicating to me? alternative position, advanced as a fall-back to a primary request for different counsel." [DEFENDANT:] As of this Johnstone, 808 F.2d at 216 n.2. However, point, no. context is important in determining whether a defendant clearly invokes his right to self-[COURT:] You mean, at some representation. Here, petitioner did not future point, you may want an clearly seek self-representation as a fall-attorney? back position. Instead, his reference to proceed pro se was contained in the same [DEFENDANT:] A legal statement as his request for a recess to await advisor, yes. his new attorney. In that context, it was certainly reasonable for the state court to [COURT:] Well, a legal advisor view the passing reference to self-is another story. representation as simply a figurative expression of frustration or hyperbole by (Tr. 405-07). The court then conducted an petitioner rather than as an unequivocal extensive inquiry into petitioner's attempt to invoke his right to represent knowledge and experience, and provided himself as an alternative position. This is comprehensive warnings about the wisdom especially true considering the fact that of proceeding pro se, and gave petitioner the petitioner qualified his request to proceed opportunity to confer with his assigned pro se by saying that he would go pro se counsel. (Tr. 407-34.) After repeated until the new attorney appeared the assurances from petitioner that he following Monday. (Tr. 302.) See, e.g., understood the risks yet still wanted to Burton v. Collins, 937 F.2d 131, 134 (5th represent himself, the court granted his Cir. 1991) ("The fact that there is more than request. (Tr. 434.) Petitioner's request to one reasonable interpretation of the dialog proceed pro se was granted on Monday, between Burton and the trial judge is, in a January 13, 2003. sense, the best evidence that Burton did not clearly and unequivocally assert his right to self-representation."); see also United States v. Ibarra, 236 Fed. App'x 10, 14 (5th Cir. Mr. Rozan and his request for a different 2007) ("[S]tatements delivered lawyer. . . . Here, Mr. Pena did not make contemporaneously with the purported self- such an unequivocal and timely request." representation requests similarly create a (citations omitted)); United States v. Light, reasonable interpretation of the requests 406 F.3d 995, 999 (8th Cir. 2005) (finding other than an interpretation that Ibarra that a request to self-representation was sought to waive his fundamental equivocal where the defendant asked, constitutional right to counsel."). This "What's the rule on representing yourself?" Court's conclusion on this issue is consistent after the defendant was warned about with numerous other courts that have found misbehaving in the courtroom); United that similar passing references to proceed States v. Manthey, 92 Fed. App'x 291, 295 pro se, made in the context of a denial of a (6th Cir. 2004) ("We do not assess this motion to replace counsel, were equivocal. single, off-the-cuff remark [that he wanted See, e.g., Reese v. Nix, 942 F.2d 1276, 1281 to defend himself] as the clear and (8th Cir. 1991) (finding that a request to unequivocal request to proceed pro se proceed pro se was not clear and required by Faretta v. California." (citation unequivocal where the defendant stated, omitted)); Green v. Prosper, No. CV 05-"Well, I don't want no counsel then," after 8759-JVS (PLA), 2007 WL 4969523, at *5 the trial court denied his motion to substitute (C.D.Cal. Dec. 17, 2007) ("the record counsel and finding that such statement reflects that petitioner's request to represent "seem[ed] to be an impulsive response to the himself was not unequivocal because trial court's denial of his request for new petitioner had previously requested that the counsel"); Burton v. Collins, 937 F.2d 131, trial court appoint new counsel and he was 132-34 (5th Cir. 1991) (finding a request for unclear in his request immediately prior to self-representation was equivocal where trial whether he was requesting new counsel defendant's question, "May I represent or requesting to represent himself."). Thus, myself?" was asked after the judge informed the record supports the state court's finding the defendant that his current counsel would that petitioner's initial reference that he not be replaced); see also United States v. would proceed pro se was equivocal.

Pena, 279 Fed. App'x 702, 707 (10th Cir. May 27, 2008) ("The sole evidence of such Petitioner cites Williams in support of an intention [to represent himself] is the one his argument. (Pet'r's Merits Resp. at 40-question ('[c]an I represent myself?') that 41.) His reliance on that case is misplaced. Mr. Pena asked in the middle of a colloquy In Williams, the Second Circuit concluded with the judge that primarily concerned his that the petitioner was unconstitutionally dissatisfaction with his current counsel Mr. denied his right to self-representation Rozan and his request for a new attorney . . . because he clearly and unequivocally . When the judge did not answer his informed the trial judge of his desire to question about self-representation, Mr. Pena proceed pro se: did not pursue the issue in any way: neither in the trial proceedings nor in a written The record is clear that on more than motion did he ever mention self- one occasion Williams clearly and representation again. Moreover, in his unambiguously asserted his desire to statements to the judge after his question represent himself at his criminal about representing himself, Mr. Pena trial. He elected to forgo counsel continued to express his dissatisfaction with before the grand jury. At his arraignment, Williams stated, "I will that permission, sir?' This request represent myself." Later, Williams likewise was denied. asked that his case be placed on Justice Doyle's docket so he could 348 F.2d at 14. Thus, in Maldonado, there renew his application to act pro se. was a clear request and a clear denial by the As represented by Williams's state court of petitioner's right to self-counsel at the time, the sole purpose representation. of the September 18, 1990 hearing was to address Williams's In the instant case----unlike in Williams application to discharge his and Maldonado----petitioner made a passing, appointed counsel and proceed pro off-the-cuff reference to self-representation se. At the hearing, Williams while requesting new counsel and never declared: "it's . . . my intention[ ] made any other indication that he would now to go pro se. Before I wanted to represent himself prior to the have an attorney, but I can't afford a commencement of jury selection, even after private attorney. That's why I'm his request for appointment of new counsel going pro se." was denied. This Court therefore finds that petitioner's initial request to proceed pro se 44 F.3d at 100. Given that record in the was equivocal, and the trial court did not err state court, the Second Circuit found that, in denying the initial request to proceed pro "[o]n each of these occasions, Williams's se. statements show a 'purposeful choice reflecting an unequivocal intent to forego In short, although a request for self-the assistance of counsel.'" Id. (quoting representation is not equivocal simply Tompkins, 623 F.2d at 827-28). because it is an alternative position to a request for new counsel or because it was Although petitioner does not specifically only mentioned in one appearance, the rely on Maldonado, that case is also actual request must nevertheless be clear and instructive here.The situation unequivocal. Here, petitioner's statements in Maldonado also was far different from on January 7 and January 10, 2003, were a the factual record here. Specifically, far cry from a clear and unequivocal request in Maldonado, the petitioner made separate, to proceed pro se. A review of the record unequivocal requests to represent demonstrates that a reasonable interpretation himself after the Court denied his request of is that Rush's initial references to self-assignment of other counsel: representation were made as a result of his frustration with the denial of his motion for When the cases were called on the new counsel and did not constitute a sincere calendar but before the jury had been request to proceed pro se. See Collins, 937 chosen, both Maldonado and DiBlasi F.2d at 134. Thus, the state court's decision asked for the assignment of other was neither contrary to, nor an unreasonable counsel. The trial judge denied their application of, clearly established federal requests. Maldonado then stated, law, and was not based on unreasonable 'Your Honor, if I feel that the case determination of the facts in light of the must go on, I want to be able to act as evidence presented in the state court my own attorney. Would you give me proceeding. There is no basis to disturb the state court's finding on this issue in the SO ORDERED. context of a habeaspetition.

In sum, the Court concludes that Rush's habeas petition is untimely and there is no Dated: February 2, 2011 basis for equitable or statutory tolling of the Central Islip, New York statute of limitations period. In the alternative, all of Rush's arguments are dismissed on the merits. Petitioner appears pro se. Attorneys for respondent are Tammy J. Smiley and Jason IV. CONCLUSION P. Weinstein, Assistant District Attorneys, on behalf of Kathleen M. Rice, District For the foregoing reasons, petitioner has Attorney, Nassau County, 262 Old Country demonstrated no basis for relief under 28 Road, Mineola, NY 11501.

U.S.C. § 2254. Rush's habeas petition is time-barred and the statute of limitations should not be tolled in this case. In the alternative, the petition is dismissed on the merits because petitioner has failed to point to any state court ruling that was contrary to, or an unreasonable application of, clearly established federal law, or that resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Moreover, petitioner has failed to demonstrate that an evidentiary hearing is warranted on any of the issues that he has raised because he has failed to indicate any factual issues that need resolution through a hearing.

Accordingly, the instant habeas petition is denied in its entirety as untimely, and in the alternative, on the merits. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close the case.

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