United States District Court, S.D. New York
REPORT AND RECOMMENDATION
CATHY SEIBEL, District Judge.
Roger Beecham ("Petitioner"), proceeding pro se, seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 4, 2010, Petitioner pleaded guilty to criminal possession of a weapon in the second degree before Judge Barbara Zambelli in Westchester County Court. Petitioner was sentenced on March 2, 2010, as a second violent felony offender, to a determinate term of eight years imprisonment, to be followed by five years of post-release supervision. The matter comes before me pursuant to an Order of Reference dated February 11, 2013. (Dkt. 8). For the reasons set forth below, I respectfully recommend that the petition be DENIED.
A. Conviction and Sentence
On January 4, 2010, Petitioner pleaded guilty to criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03, a Class C felony. See Respt's Mem. of Law ("Resp't's Mem.") (Dkt. 16), at Ex. 1. at 88-96 (transcript of plea colloquy). Petitioner was sentenced on March 2. 2010. as a second violent felony offender, to a determinate term of imprisonment of eight ears. to he followed by live years of' post-release supervision. See Pet'r's Habeas Relief Pet. ("Pet."). at 1 (Dkt. 1).
B. Direct Appeal
Petitioner raised one claim on direct appeal: the sentence "should be modified in the interest ofjustice under the circumstances." See Respt's Mem., at Ex. 3. at 13 (Appellate Brief). The Second Department affirmed the conviction on March 6. 2012. People v. Beecharn, 938 N.Y.S.2d 924 (2012). The New York State Court of Appeals denied leave to appeal on June 13, 2012. People v. Beecham, 19 N.Y.3d 957 (2012).
C. Federal Habeas Petition
By pro se application notarized September 20, 2012. Petitioner seeks a federal writ of habeas coipus and raises the following three claims:
(1) excessive sentence:
(2) "Miranda rights not read on the interrogation video violating the Petitioners constitutional rights:" and
(3) Petitioner "was promised 7 years by the District Attorney."
Pet., at 4. Respondent filed its affidavit in opposition to the petition on April 18, 2013. Petitioner did not file a reply.
A. Applicable Law
"Habeas review is an extraordinary remedy." Bousley v. United States. 523 U.S. 614 , 621 (1998) (citing Reed v. Fancy , 512 U.S. 339. 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, then the court must determine the appropriate standard of review applicable to petitioner's claim(s) in accordance with Section 2254(d). The procedural and substantive standards applicable to habeas review were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132. 110 Stat. 1220 (Apr. 24, 1996).
1. Timeliness Requirement
A federal habeas corpus petition is subject to AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period, and specifies that the latest of these shall apply. See id. § 2244(d)(1). Under the statute, the limitation period is tolled only during the pendency of a properly' tiled application for state post-conviction reliet or other collateral ...