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Lance Tucker v. James Nichols

March 8, 2011

LANCE TUCKER, PETITIONER,
v.
JAMES NICHOLS, SUPERINTENDENT, MID-ORANGE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER DISMISSING PETITION

Lance Tucker, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under § 2254. Tucker is currently in the custody of the New York State Department of Correctional Services, incarcerated at the Mid-Orange Correctional Facility. Respondent has answered, and Tucker has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In April 1983, following a jury trial, Tucker was convicted in the Albany County Court of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25[3]). The trial court sentenced Tucker, as a juvenile offender, to an indeterminate prison term of nine years to life. Tucker timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction and sentence, and the New York Court of Appeals denied leave to appeal on February 13, 1986.*fn1 The factual basis of the crime of which Tucker was convicted is well known to the parties. As those facts are not relevant to the issues presented in the Petition before this Court, they are not repeated here.

On December 12, 2003, Tucker, appearing pro se, filed a motion in the Albany County Court to vacate the judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion"). In his motion, Tucker claimed that: (1) based on newly discovered evidence, the affidavits of two recanting witnesses, he was entitled to a new trial; (2) the prosecutor failed to disclose Brady material;*fn2 (3) the use of perjured testimony violated his right to a fair trial; and (4) he is actually innocent. The Albany County Court, after holding an evidentiary hearing, denied Tucker's motion in an unreported, reasoned decision. The Appellate Division, Third Department, granted Tucker leave to appeal, affirmed the Albany County Court in a reported, reasoned decision on May 10, 2007, and the New York Court of Appeals denied leave to appeal on August 17, 2007.*fn3 Tucker filed his Petition in this Court on October 17, 2007.

II. GROUNDS RAISED/DEFENSES

In his Petition to this Court, although set forth as eight separate grounds, Tucker raises but three grounds: (1) he is entitled to a new trial based on newly discovered evidence, i.e., the recantation of the testimony of two witnesses-Talmadge Lacy and Curtis Williams; (2) Brady violations because the prosecutor failed to (a) disclose favorable treatment provided to Williams, in exchange for testimony, (b) disclose a second statement made by Williams, and (c) disclose Williams's polygraph results; and (3) prosecutorial misconduct by failing to correct the false testimony of Williams. Tucker also contends that there is a reasonable likelihood that non-disclosure of Brady material affected the outcome of the trial and supports his claim of actual innocence. Respondent contends that the Petition is untimely, and, except for his prosecutorial misconduct claim, Tucker has failed to exhaust his available state-court remedies. Respondent asserts no other affirmative defense.*fn4

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, this Court cannot grant relief unless the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are la'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn9 The Supreme Court has made it clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Tucker "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn13cking, "it cannot be said that the state court In applying this standard, this Court reviews the last reasoned decision by the state court.*fn14 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 Although pre-AEDPA precedent established that deference is due findings of state appellate courts,*fn16 the Second Circuit has left the question open with respect to AEDPA cases.*fn17 In the absence of clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.

IV. DEFENSES

Respondent has asserted two affirmative defenses: (1) timeliness; and (2) exhaustion as to all but one of Tucker's claims. Tucker's claims are subject to dismissal if they are either untimely,*fn18 or unexhausted.*fn19

A. Timeliness

The New York Court of Appeals denied Tucker's application for leave to appeal his conviction on February 13, 1986. Tucker's conviction became final on direct review 90 days later, May 14, 1986, when his time to file a petition for certiorari in the Supreme Court expired.*fn20

28 U.S.C. § 2244 provides:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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