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Martinez v. Superintendent of Eastern Corr. Facility

United States District Court, E.D. New York

April 15, 2014

DAVID MARTINEZ, Petitioner,
v.
SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent

David Martinez, Plaintiff, Pro se, Beacon, NY.

For Superintendent of Eastern Correctional Facility, Defendant: NEW YORK STATE ATTORNEY GENERALS OFFICE - GENERIC, LEAD ATTORNEY, New York State Attorney Generals Office; Laurie Kathleen Gibbons, LEAD ATTORNEY, Nassau County District Attorney's Office, Mineola, NY.

Page 227

ORDER

NINA GERSHON, United States District Judge.

By order dated October 6, 2011, the Honorable Sandra J. Feuerstein, district judge, directed petitioner to show cause why his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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should not be dismissed as time-barred, specifically requiring petitioner to " provide the date he filed his petition for a writ of error coram nobis in state court and the date he was sentenced, if different from the date that he entered a plea of guilty," and to " present any facts which would support equitable tolling of the period of limitations, if applicable." [1] October 6, 2011 Order [ECF No. 4] at 5. For the reasons set forth below, the petition is dismissed.

BACKGROUND

I. Procedural History

On July 20, 2007, petitioner pleaded guilty in New York Supreme Court, Nassau County, to attempted murder in the second degree, two counts of robbery in the first degree, two counts of assault in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.[2] He waived his right to appeal on all counts. On February 11, 2008, petitioner was sentenced to concurrent determinate terms of imprisonment of twelve years followed by five years of post-release supervision for the first seven counts of the indictment, and a concurrent determinate term of imprisonment of seven years followed by three years of post-release supervision for the count of criminal possession of a weapon in the third degree. The court also imposed restitution in the amount of $33,811.47, various fees, and a final order of protection in favor of the victim

Petitioner filed a writ of error coram nobis with the New York Supreme Court, Nassau County, on August 3, 2010.[3] On December 8, 2010, that court modified the restitution amount, but otherwise denied the writ. The Appellate Division, Second Department, denied petitioner leave to appeal the denial of the writ of error coram nobis on May 10, 2011, and the New York Court of Appeals dismissed his application for leave to appeal on August 1, 2011.

Mr. Martinez filed a pro se petition seeking a writ of habeas corpus in this court on August 30, 2011.[4] He seeks a

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reduction of his sentence to ten years of imprisonment and reduction or elimination of his post-release supervision based on claims of ineffective assistance of counsel, the alleged illegality of post-release supervision, and the coercion of his plea. ...


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