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Wayne Singleton, Pro Se v. Robert Cunningham

June 6, 2011

WAYNE SINGLETON, PRO SE,
PETITIONER,
v.
ROBERT CUNNINGHAM, SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

NOT FOR PRINT OR ELECTRONIC PUBLICATION

Pro se petitioner Wayne Singleton ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1, Petition for Writ of Habeas Corpus, dated Oct. 25, 2010 ("Pet.").) Respondent Robert Cunningham, the Superintendent of Woodbourne Correctional Facility, ("respondent") moves to dismiss the petition on the ground that it is time barred. (See generally ECF No. 10, Notice of Motion to Dismiss Habeas Corpus Petition Pursuant to 28 U.S.C. § 2244(d)(1); Affirmation of John Castellano ("Castellano Aff."); Memorandum of Law in Support of Dismissal of Petition for a Writ of Habeas Corpus ("Resp.

Mem.").) Also before the court is a letter from petitioner, which the court construes as an opposition to respondent's motion to dismiss and an application for appointment of counsel. (See ECF No. 14, Letter dated March 6, 2010 ("Pet. Opp.").) For the reasons set forth below, the respondent's motion to dismiss the petition for a writ of habeas corpus is granted in its entirety and petitioner's application for appointment of counsel is denied.

BACKGROUND

I. Procedural History

On October 25, 2010, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Pet.) The petition arises from petitioner's conviction, on March 11, 1985, after a jury trial in Supreme Court, Queens County, for murder in the second degree, in violation of New York C.P.L. § 125.25(3), and robbery in the first degree, in violation of New York C.P.L. § 160.15. (See Castellano Aff. at ¶ 2.) Petitioner was sentenced to, and is currently serving, concurrent periods of incarceration of twenty-five years to life for the murder conviction and twelve and one-half to twenty-five years for the robbery conviction. (Id.)

On March 27, 1985 and April 1, 1985, petitioner filed notices to appeal his conviction. (Castellano Aff. at ¶ 4.) In November 1987, petitioner, through counsel, perfected his appeal to the Appellate Division. (Id. at ¶ 5.) Respondent summarizes petitioner's arguments on appeal as follows: (1) petitioner received ineffective assistance of trial counsel; (2) petitioner was denied the right to counsel due to the trial court's denial of petitioner's motions to relieve trial counsel; (3) the trial court erred in refusing to suppress a statement made by petitioner in the absence of his counsel; and (4) the State failed to corroborate the testimony of an accomplice. (See id.) Petitioner also filed a pro se supplemental brief alleging that he was denied a fair trial due to the conduct of the trial prosecutor. (Id. at ¶ 8.) On November 14, 1988, the Appellate Division affirmed petitioner's conviction. (Id. at ¶ 10); see also People v. Singleton, 534 N.Y.S.2d 191 (2d Dep't 1988). On December 6, 1988, petitioner, acting through counsel, sought review of the Appellate Division's decision in the Court of Appeals. (Castellano Aff. at ¶ 11.) The Court of Appeals denied the request for review on January 13, 1989. (Id. at ¶ 12); see also People v. Singleton, 538 N.Y.S.2d 808 (1989).

On September 5, 1996, petitioner, acting pro se, filed a motion to vacate judgment in the Supreme Court, Queens County pursuant to New York C.P.L. § 440.10(1)(c), (d), (f) and (h), and C.P.L. § 440.20. (Castellano Aff. at ¶ 13.) According to respondent, petitioner argued that: (1) trial counsel failed to confer with petitioner and failed to make a sufficient record at a Huntley hearing of petitioner's intoxication at the time of his arrest; (2) trial counsel failed to present material evidence at the Huntley hearing; (3) the trial court wrongly refused to grant petitioner's repeated motions to relieve trial counsel; (4) trial counsel failed to object to prejudicial remarks by the prosecutor; (5) the trial prosecutor knowingly withheld information from the arresting detective, and the arresting detective and prosecutor deliberately shielded themselves from knowledge of petitioner's representation by an attorney in a then-pending case; (6) the trial prosecutor improperly questioned petitioner when he asked petitioner whether the detective had been lying; and (7) the trial prosecutor improperly shifted the burden of proof. (Id.) On November 13, 1996, the Supreme Court denied petitioner's post-judgment motion in its entirety, on the grounds that petitioner's claims had either been addressed during his direct appeal or, alternatively, could have been addressed in petitioner's direct appeal. (Id. at ¶ 14.) Petitioner failed to timely appeal the trial court's order denying his post-judgment motion to the Appellate Division; instead, petitioner did not file his appeal until March 20, 1997. (Id. at ¶¶ 16, 17.) On August 7, 1997, the Appellate Division denied petitioner's request for leave to appeal. (Id. at ¶ 20.)

Almost eleven years later, on March 18, 2008, petitioner, appearing pro se, again moved in the Supreme Court to vacate his judgment and conviction, arguing that: (1) he was denied a fair trial because minutes of pre-trial adjournments were not transcribed; (2) the trial court mistakenly denied his request for new counsel; (3) the trial court erred in not suppressing petitioner's statement to the police; and (4) petitioner's trial attorney was ineffective. (Castellano Aff. at ¶ 21.) According to respondent, on August 20, 2008, the trial court denied petitioner's motion, ruling that the claim regarding the purportedly missing minutes was not properly raised in a motion to vacate judgment, and that the remaining claims were subject to mandatory procedural bars because petitioner had already raised them on direct appeal and they had been adjudicated against him. (Id. at ¶ 24.) On December 2, 2008, petitioner sought leave to appeal the denial of his second post-judgment motion to the Appellate Division. (Id. at ¶ 27.) The Appellate Division denied this request on February 13, 2009. (Castellano Aff. at ¶ 31.) On March 10, 2009, petitioner moved in the Appellate Division for leave to appeal to the Court of Appeals the Appellate Division's denial of leave to appeal the decision on his post-judgment motion. (Id. at ¶ 33.) The Appellate Division denied this request on April 24, 2010. (Id. at ¶ 37.)

On August 22, 2009, petitioner filed an application for a writ of error coram nobis in the Appellate Division, alleging that the absence of critical minutes that bore directly on appellate issues had rendered his appellate counsel ineffective because he was not able to fully develop certain appellate arguments. (Castellano Aff. at ¶ 39.) The Appellate Division denied petitioner's application on February 23, 2010. (Id. at ¶ 42.) On March 25, 2010, petitioner sought leave to appeal the denial to the Court of Appeals, which the Appellate Division denied on June 14, 2010. (Id. at ¶ 48.) Finally, on June 23, 2010, petitioner applied directly to the Court of Appeals for leave to appeal the Appellate Division's denial of his application for a writ of error coram nobis. (Id. at ¶ 49.) The Court of Appeals denied petitioner's application for leave to appeal on July 14, 2010. (Id. at ¶ 52); see also People v. Singleton, 15 N.Y.3d 778 (2010).

III. Proceedings in this court

Petitioner filed a writ of habeas corpus in this court on October 25, 2010. (ECF No. 1, Pet.) Recognizing that petitioner's claim was potentially barred by the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the court ordered petitioner to show cause why his petition should not be dismissed as time barred. (ECF No. 2, Mem. and Order dated Nov. 8, 2010.) The court specifically directed petitioner to present any facts that would support equitable tolling of the period of limitations. (Id.)

Petitioner filed an affirmation on November 26, 2010, addressing the court's concerns about the statute of limitations. (ECF No. 3, Petitioner's Affirmation, dated Nov. 26, 2010 ("Pet. Aff.").) In response, the court ordered respondent file a complete and entire answer or other pleading in response to the petition within sixty days. (ECF No. 4, Order dated Dec. 8, 2010.) Accordingly, respondent filed a motion to dismiss the petition on February 7, 2011. (ECF No. 10, Notice of Motion to Dismiss Habeas Corpus Petition Pursuant to 28 U.S.C. ยง 2244(d)(1).) ...


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