The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
By means of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254, pro se litigant Roberto Concepcion ("Petitioner" or "Concepcion") challenges the constitutionality of Respondent's custody over him. Concepcion is currently serving a 25-year-to-life sentence pursuant to a judgment of conviction entered against him on May 1, 1995, following a jury trial in Monroe County Court on one count of second degree (intentional) murder.
Michael Nelson ("Nelson" or "the victim") was fatally shot in the head at about 1:00 a.m. on July 29, 1993, while he was standing outside a mini-mart at the corner of Seventh and Bay Streets in the City of Rochester. The two bullets recovered from Nelson's body were found to have come from the same nine-millimeter gun; however, the murder weapon never was recovered. At the time of the shooting, no arrests were made.
Months after the murder, Robert Black ("Black"), a convicted drug dealer serving a six to twelve-year term of imprisonment, informed the City of Rochester Police Department that a person named Tirado had killed Nelson at the behest of Roberto Concepcion ("Concepcion").
Since Black already was serving a prison term, the prosecutor informed him that there was not much that could be done in exchange for his cooperation. Black was told that, if he cooperated, the prosecutor would inform the parole board of this fact. The prosecutor also promised Black that if Black filed a collateral application to have his sentence modified, the motion court would be informed of the cooperation he provided. Finally, Black and his sister, Ranisha Mackey ("Mackey"), who also testified for the prosecution, received $800 from the $5,000-award posted by Nelson's father through "CrimeStoppers." Defense counsel was made aware of these facts during the pre-trial phase of the proceeding.
Tirado's and Concepcion's severance motions were denied, and Concepion and Tirado were tried jointly in Monroe County Court (Connell, J.). Their first trial ended in a mistrial as a result of juror misconduct. Their second trial commenced on February 7, 1995, before Judge Connell, and resulted in their both being convicted of second degree (intentional) murder in connection with Nelson's death.
Concepcion's direct appeal, motions to vacate the judgment, and application for a writ of error coram nobis were unsuccessful. Concepcion, as discussed further below, filed his first federal habeas petition in 2000, but requested in 2001 that it be dismissed without prejudice. This request was granted, and Concepcion was warned that any subsequent petition might be untimely because the statute of limitations had continued to run during the pendency of the first petition.
When Concepcion filed the instant petition in 2007, Respondent asserted that the petition was untimely and that Petitioner was not entitled to equitable tolling of the statute of limitations, that several of Petitioner's habeas claims were unexhausted and that, in any event, none of the claims in the petition had merit.
Petitioner submitted several reply briefs in response to Respondent's opposition papers; however, Petitioner did not directly addressed the issue of timeliness. Petitioner has also filed a motion to have his petition stayed and held in abeyance, as well as a motion for discovery and an evidentiary hearing. Respondent has opposed these requests.
The parties consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
For the reasons that follow, Concepcion's petition is dismissed as untimely. Concepcion's motion for a stay-and-abeyance and motion for discovery and an evidentiary hearing are accordingly denied as moot.
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