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Eddie Rush v. John B. Lempke

February 2, 2011

EDDIE RUSH, PETITIONER,
v.
JOHN B. LEMPKE, RESPONDENT.



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

MEMORANDUM AND ORDER

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.

Id.

(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 ...


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