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Lamar Edwards v. Donna Zickefoose

June 15, 2012

LAMAR EDWARDS, PETITIONER,
v.
DONNA ZICKEFOOSE, WARDEN OF THE FORT DIX CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

On July 25, 2011, pro se Petitioner Lamar Edwards ("Petitioner") filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the Court is: (1) Respondent's*fn1 motion to dismiss the Petition as untimely and (2) Petitioner's motion for a default judgment. For the reasons set forth below, Respondent's motion to dismiss is GRANTED, and Petitioner's motion for default judgment is DENIED.

BACKGROUND

On or about January 10, 1990, Petitioner was arrested and charged with criminal sale of a controlled substance in the third degree in violation of N.Y. PENAL LAW § 220.39(1) and criminal possession of a controlled substance in the third degree in violation of N.Y. PENAL LAW § 220.16(1). (Resp't Aff. ¶ 5.) On March 21, 1990, in accordance with a negotiated plea agreement in which he waived his right to appeal, Petitioner pled guilty to one count of criminal sale of a controlled substance in the fourth degree in satisfaction of all charges against him. (Pet. ¶ 2; Resp't Aff. ¶ 6; Sentencing Mins., Docket Entry 6-5, at 30-33.) On May 1, 1990, Petitioner was sentenced by Nassau County Court Judge Edward A. Baker to an indeterminate term of imprisonment of three to six years. (Pet. ¶ 3; Sentencing Mins., Docket Entry 6-5, at 33.) Petitioner served his time and was released.

On or around April 11, 2007, Petitioner was arrested after being indicted by a federal grand jury in the Eastern District of New York. On February 15, 2008, Petitioner pled guilty to Conspiracy to Distribute and to Possess with Intent to Distribute Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846, and on October 10, 2008, Judge Arthur D. Spatt sentenced Petitioner to a term of imprisonment of 188 months. See United States v. Powell, 07-CR-0287 (E.D.N.Y.). Plaintiff is currently serving this sentence.

On April 15, 2010, Petitioner filed an application for a writ of error coram nobis in the County Court, Nassau County challenging his 1990 state court conviction on the grounds that:

(i) he received ineffective assistance of counsel and (ii) the court, during his plea allocution, failed to advise him of the charges against him or adequately determine whether he understood the proceeding and the nature of the charges in violation of his right to due process. (State Pet. for Writ of Error Coram Nobis, Docket Entry 6-5, at 15; Gov't Aff. in Opp. to Mot. to Vacate, Docket Entry 6-5, at 40.) In his application, Petitioner stated that he was seeking to have his state court conviction vacated because it "had an adverse effect on the execution and calculation of the petitioner's now served federal sentence." (State Pet. for Writ of Error Coram Nobis, Docket Entry 6-5, at 13.) The state court interpreted Plaintiff's application for a writ of error coram nobis as a motion to vacate his judgment of conviction under N.Y. CRIM. PROC. LAW § 440.10 and, on October 21, 2010, denied the motion as procedurally barred and without evidentiary support. People v. Edwards, S.C.I. No. 74240N-90 (Cnty. Ct., Nassau Cnty. Oct. 21, 2010). (Docket Entry 6-5, at 47-48.) Petitioner appealed to the Appellate Division, Second Department and, by Decision and Order dated March 4, 2011, the Appellate Division dismissed the appeal. People v. Edwards, No. 2010-11193 (App. Div. 2d Dep't Mar. 4, 2011). (Docket Entry 6-5, at 50.)

On July 25, 2011, Petitioner filed the instant application for a writ of habeas corpus*fn2 in the United States District Court for the Middle District of Pennsylvania seeking relief from his 1990 state court conviction on the grounds that:

(i) he received ineffective assistance of counsel; (ii) his due process rights were violated; and (iii) the County Court, Nassau County wrongfully re-characterized his writ of error coram nobis of April 15, 2010 as a motion to vacate pursuant to N.Y. CRIM. PROC. LAW § 440.10. (Pet. ¶¶ 12, 13.) The Petition was transferred to this Court pursuant to 28 U.S.C. § 1404(a) on July 28, 2011. (See Order, Docket Entry 6-4.)

DISCUSSION

Presently pending before the Court is Respondent's motion to dismiss the Petition as time-barred and Petitioner's cross motion for a default judgment.

I. Motion to Dismiss

The Respondent argues that the ...


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