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Damon Halmond Jr v. John B. Lempke

June 20, 2011

DAMON HALMOND JR., PETITIONER,
v.
JOHN B. LEMPKE, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner, Damon Halmond, Jr. ("Halmond" or "Petitioner"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis that his convictions for first degree rape and second degree rape were unconstitutionally obtained. Petitioner argues that his Sixth Amendment right to cross-examine the victim was improperly curtailed and that he was erroneously sentenced as a persistent violent felony offender. Respondent argues that the Petition is untimely. Respondent further argues that the Sixth Amendment claim is procedurally defaulted and, in any event, without merit. Respondent argues that the sentencing claim likewise is without merit.

For the reasons set forth below, the Court finds that the Petition is, in fact, timely. However, the Court agrees with Respondent's arguments concerning procedural default and the lack of merits of Petitioner's claims. Accordingly, the Petition is dismissed.

II. Discussion

A. Timeliness

With limited exceptions, a prisoner seeking a writ of habeas corpus must submit his petition no more than one year after the judgment against him becomes final. See 28 U.S.C. § 2244(d)(1)(A)-(D). The statute also provides for tolling of the limitations period during the pendency of a "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . . ." 28 U.S.C. § 2244(d)(2).

For the purpose of deciding whether the Petition is timely, the Court must determine when the one-year period began running. In Halmond's case, this requires a decision as to when the "judgment became final by the conclusion of direct review or the expiration of time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).

Petitioner was convicted and sentenced on November 19, 2002. On June 6, 2008, Petitioner's conviction was unanimously affirmed on direct appeal by the New York State Supreme Court, Appellate Division, Fourth Department. The New York State Court of Appeals denied leave to appeal on August 19, 2008. Adding to that a 90-day period during which he could have petitioned for certiorari in the United States Supreme Court, Petitioner's conviction became final on November 17, 2008. See Clay v. United States, 537 U.S. 522, 525 (2003) ("[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); SUP. CT. R. 13(1) (setting 90-day limit for filing of petition of writ of certiorari). Thus, the one-year statute of limitations commenced on November 17, 2008, and Halmond had until November 17, 2009, to file his Section 2254 Petition in this Court.

Respondent argues that the Petition was filed on the date that it was received by the Court, which was December 14, 2009. This argument ignores the well-settled "prisoner mailbox rule". In Houston v. Lack, the United States Supreme Court held that a pro se habeas petitioner's notice of appeal is deemed filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court clerk. 487 U.S. 166, 276 (1988). The rule is premised on the fact that a pro se prisoner's mail must go through the conduit of prison authorities whom he cannot control and whose interests might be adverse to his. See Houston, 487 U.S. at 271.

"Where it is unclear when a pro se state prisoner mailed his or her habeas petition, the court assumes that the petition is filed on the day it is signed and dated." Porter v. Greiner, No. 00-6047, 2005 WL 3344828, at *7 (E.D.N.Y. Nov.18, 2005)(citing Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000) ("[W]e treat the petitioner's petition as having been given to prison officials for filing, and therefore having been filed, on the date that appears on his petition, July 16, 1997.")). The Court construes the date Petitioner signed the Petition (November 12, 2009) as the effective filing date. The Petition accordingly is timely.

B. Merits of the Petition

1. Improper Limitation of Cross-Examination

Petitioner claims the trial court erred by not allowing him to cross-examine the victim about (1) prior accusations of rape which she made and which involved different perpetrators and (2) purported admissions of prostitution. Respondent argues that ...


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