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Sephora K. Davis v. andrea W. Evans and Brian Fischer

August 15, 2012

SEPHORA K. DAVIS, PETITIONER,
v.
ANDREA W. EVANS AND BRIAN FISCHER, RESPONDENTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION and ORDER

INTRODUCTION

Before the Court is the Respondents' amended*fn1 motion to dismiss Petitioner's habeas corpus petition, filed on June 6, 2012, ECF No. 10, and their Motion for an Extension of time to File Answer, June 14, 2012, ECF No. 12. Also before the Court are Petitioner's motion for a default judgment, June 1, 2012, ECF No. 8, and her motion to strike Respondents' answer. After reviewing the documents presented, the motion to dismiss is granted.

BACKGROUND

This case has a long and torturous history through the state and federal court systems beginning in October 2004, when Petitioner was indicted by a New York State grand jury on two counts of Kidnaping in the First Degree, one count of Robbery in the First Degree, one count of Robbery in the Second Degree, and one count of Burglary in the First Degree. Resp't Decl. in Supp. of the Mot. to Dismiss ¶ 3 ("Resp't Decl.").On October 20, 2006, Petitioner plead guilty, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to attempted First Degree robbery and was sentenced on January 3, 2007, to 3 1/2 years in state prison and 2 1/2 years of post-release supervision. Resp't Mem. of Law in Supp. of Mot. to Dismiss 1. Petitioner's appeal has never been perfected due to what she described as impossibility of relief. Pet. ¶ 9.

On May 17, 2006, while her indictment was still pending, Petitioner filed a petition pursuant to New York Civil Procedure Law and Rules, Article 78, in the New York Supreme Court, Appellate Division, Fourth Department ("Fourth Dept.") claiming her October 2004 indictment was based on perjured testimony and seeking a writ prohibiting the District Attorney from prosecuting her. Id. at ¶ 15; Matter of Davis v. Kohout, 35 A.D.3d 1173 (4th Dept. 2006). The Fourth Dept. dismissed her petition as moot on December 22, 2006, based on her guilty plea. Matter of Davis, 35 A.D.3d at 1173-74. On March 27, 2007, the New York Court of Appeals held "[o]n the Court's own motion, appeal dismissed, without costs, upon the ground that the issues presented have become moot. Motion for leave to appeal dismissed upon the ground that the issues presented have become moot." Matter of Davis v. Kohout, 8 N.Y.3d 903 (2007). The United States Supreme Court denied a petition for certiorai on October 1, 2007. Davis v. Kohout, 552 U.S. 826 (2007).

In October 2005, while her indictment was still pending, Petitioner brought a habeas corpus proceeding to this Court claiming, as she had in the State petition, that her October 2004 indictment was based on perjured testimony. Pet. ¶ 16. Sometime in March 2006, Petitioner withdrew that petition. Id. On February 15, 2008, John M. Regan, Jr., Esq., brought a habeas corpus petition seeking Petitioner's release. Id. On May 29, 2008, the Honorable David G. Larimer of this Court dismissed the petition for lack of jurisdiction as John M. Regan, Jr., the named petitioner, had not filed the action as Petitioner's "next friend."*fn2 Decision and Order at 3, Regan v. Fischer, No. 08-CV-6071, ECF No. 6 (W.D.N.Y. May 29, 2008).

On April 22, 2009, Petitioner moved the Fourth Dept. for a "writ of error coram nobis due to a fraud having been perpetrated upon the Court," seeking a summary reversal of Petitioner's conviction, and granting an order "forever prohibiting Respondent [District Attorney] Moran, or any successors or assigns from criminally prosecuting [Petitioner] and dismissing that indictment with prejudice." Resp't Decl. ¶ 8. The Fourth Dept. denied the motion on June 5, 2009. Davis v. Kohout, 63 A.D.3d 1670, 2009 WL 1575529 (4th Dep't. June 5, 2009). On October 2, 2009, the Fourth Dept. dismissed the motion for reargument, clarification or leave to appeal to the Court of Appeals. Davis v. Kohout, 66 A.D.3d 1498 (4th Dep't. Oct. 2, 2009).

On December 17, 2009, Petitioner moved the Fourth Dept. to vacate its December 22, 2006, decision to dismiss the Article 78 proceeding. Resp't Decl. ¶ 9. The Fourth Dept. denied that motion on January 21, 2010. Id.

Petitioner filed the pending § 2254 petition on March 16, 2012. Pet. ¶ 27. In her petition, she contends that her indictment and conviction were obtained through perjured testimony and violated her right to due process. Resp't Decl. ¶ 12.

ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") states, in pertinent part, as follows:

A one (1) year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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