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Steven Sanzone v. P.O. Sheree L. Goode

August 12, 2011

STEVEN SANZONE,
PETITIONER,
v.
P.O. SHEREE L. GOODE, RESPONDENT.



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

NOT FOR PRINT OR ELECTRONIC PUBLICATION MEMORANDUM & ORDER

Pro se petitioner Steven Sanzone ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1, Petition for Writ of Habeas Corpus, dated Sept. 28, 2010 ("Pet.").) Respondent P.O. Sheree L. Goode ("respondent") moves to dismiss the petition on the ground that it is time barred. (See generally ECF No. 10, Answer to Petition For Writ of Habeas Corpus ("Grady Aff."); ECF No. 10-1, Memorandum of Law in Opposition to Writ of Habeas Corpus ("Opp. Mem.").) Also before the court is a letter from petitioner and petitioner's reply to respondent's motion. (ECF No. 4, Response to Memorandum and Order ("Pet. Aff."); ECF No. 13, Answer to Petition for Writ of Habeas Corpus ("Pet. Reply"); ECF No. 13-1, Response to Memorandum of Law in Opposition to Writ of Habeas Corpus ("Pet. Reply Mem.").) 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.

BACKGROUND

On September 28, 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 January 5, 2006, in Supreme Court, Richmond County, of Criminal Contempt in the First Degree in violation of New York Penal Law § 215.51(b)(iii), following his guilty plea, and his sentence of a five-year probation period, which concluded on January 5, 2011. (Grady Aff. at

¶ 2.) Petitioner did not make any post-conviction motions and did not appeal the judgment of conviction. (Id. at ¶ 7; Pet. at 2-13.)*fn1 Petitioner's conviction thus became final on or about February 6, 2006, upon expiration of the 30-day period for filing a direct appeal with the Appellate Division. See, e.g., Betheav.Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (holding that where petitioner did not timely appeal judgment of conviction, conviction became final 30 days after judgment).

On July 7, 2009, pro se petitioner filed in this court a civil action pursuant to 42 U.S.C. § 1983 against Richmond County District Attorney Daniel M. Donovan, Assistant District Attorney Duncan Brown, and petitioner's former defense attorney, Robert DePalma, alleging that the three defendants conspired to "trick" petitioner into pleading guilty to charges that were not on his indictment. (Grady Aff. at ¶ 8.) On November 9, 2010, this court granted defendants' motion to dismiss the action on the ground that it failed to state a cognizable claim. (Id.)

Petitioner filed the instant petition for a writ of habeas corpus on September 28, 2010. (See generally Pet.) Respondent summarizes petitioner's arguments in support of his petition for a writ of habeas corpus as follows: (1) the Richmond County Assistant District Attorney and Petitioner's former defense attorney, Mr. DePalma, falsified documents and the charges against petitioner, in violation of the Fifth and Fourteenth Amendments to the United States Constitution; (2) the Richmond County District Attorney's Office and Mr. DePalma, with the complicity of the Richmond County Supreme Court Clerk's Office, conspired to arrange for petitioner to plead guilty to fraudulent charges, and the Supreme Court Clerk's Office falsified documents, in violation of petitioner's Sixth Amendment right to effective counsel; (3)the $3,000 bail set during the pendency of petitioner's case was excessive, in violation of the Eighth Amendment; and (4) the Richmond County District Attorney's Office and Assistant District Attorney Duncan Brown violated petitioner's Fourteenth Amendment right to due process. (Grady Aff. at ¶ 9.)

On October 5, 2010, the court ordered petitioner to show cause by written affirmation why the petition should not be dismissed as time-barred. (See generally ECF No. 3, Memorandum and Order, dated Oct. 5, 2010.) Petitioner responded with a letter dated October 19, 2010, arguing that his petition should not be dismissed as time-barred because equitable tolling should apply. (See generally Pet. Aff.) On October 25, 2010, the court ordered respondent to respond to the petition, and on December 22, 2010, respondent filed an affirmation and memorandum of law in opposition to petitioner's petition. (See generally Grady Aff.; Opp. Mem.) On February 22, 2011, petitioner filed a reply in further support of his petition. (See generally Pet. Reply; Pet. Reply Mem.)

DISCUSSION

A petition for a writ of habeas corpus filed by a person in state custody is governed by, inter alia, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA imposes a one-year statute of limitations for seeking federal habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1); see Lawrence v. Florida, 549 U.S. 327, 331 (2007); Saunders v. Senkowski, 587

F.3d 543, 546 (2d Cir. 2009); Clark v. Artus, No. 09-CV-3577, 2010 U.S. Dist. LEXIS 33096, at *8 (E.D.N.Y. Apr. 1, 2010). Pursuant to the AEDPA, the limitation period runs 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.

28 U.S.C. § 2244(d)(1); see also Clark, 2010 U.S. Dist. LEXIS 33096, at *8-9. Because petitioner states no facts indicating that subsections (B)-(D) apply, the court will examine subsection (A).

The one-year limitation period may be tolled for statutory or equitable reasons. Pursuant to the AEDPA, the limitations period is tolled while a state prisoner seeks post-conviction relief in state court:

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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