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Floyd v. Kirkpatrick

United States District Court, E.D. New York

January 26, 2017

Jamel Floyd, Petitioner,
v.
Michael Kirkpatrick, Respondent.

          Petitioner is proceeding pro se.

          Respondent is represented by Yael V. Levy, Assistant District Attorney, on behalf of Madeline Singas, District Attorney, Nassau County District Attorney's Office

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         January 26, 2017 Joseph F. Bianco, District Judge:

         On March 1, 2016, Jamel Floyd (“petitioner” or “Floyd”) petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, challenging his convictions in New York State Court for first-degree burglary, second-degree burglary, first-degree criminal use of a firearm, tampering with physical evidence, and endangering the welfare of a child. (Pet. for Habeas Corpus (“Pet.”), ECF No. 1.) A jury convicted petitioner on these charges in 2010, and the court sentenced him to determinate terms of fifteen years in prison followed by five years of post-release supervision on the burglary convictions, an indeterminate term of two to four years in prison on the tampering with physical evidence conviction, and a definite term of one year in prison on the child endanger-ment conviction, all sentences to be served concurrently.

         In this habeas petition, Floyd challenges his conviction on the following grounds: (1) he was denied due process and a fair trial because the prosecutor commented in summation that petitioner failed to call additional alibi witnesses; and (2) he received ineffective assistance of counsel as a result of defense counsel's failure to request an affirmative defense instruction on the burglary charge that the object petitioner displayed was not a loaded weapon capable of producing death or other serious physical injury. Respondent Michael Kirkpatrick, Superintendent of the Clinton Correctional Facility, has moved to dismiss the petition, arguing that it is untimely. For the reasons that follow, this Court grants respondent's motion to dismiss.

         I. Background

         The Court has adduced the following facts from the petition and the Affidavit in Support of Respondent's Motion to Dismiss the Petition for a Writ of Habeas Corpus. (ECF No. 5 at i-vii (“Resp.'s Aff.”).)

         A. Facts

         At trial, the prosecution presented evidence that, on August 30, 2007, petitioner and two accomplices forced entry into a house in Hempstead, Nassau County in which five children and four adults were present. (Resp.'s Aff. ¶ 5.) Petitioner and his accomplices forced the victims into a single room at gunpoint. (Id.) Petitioner then ransacked a bedroom and severely beat one of the adults before fleeing. (Id.) The prosecution charged him with two counts of robbery, one count of burglary in the first degree, one count of criminal use of a firearm in the first degree, one count of burglary in the second degree, one count of tampering with physical evidence, and one count of endangering the welfare of a child. (Id. ¶ 7.) A jury convicted petitioner on all but the robbery charges, and the court entered his sentence on June 11, 2010. (Id. ¶ 8.)

         Petitioner appealed his conviction in February 2011, raising the prosecutorial misconduct and ineffective assistance of counsel arguments he asserts in the Petition. (Id. ¶ 9; Pet. at 3.) The Second Department rejected both arguments and affirmed his conviction on July 25, 2012. See People v. Floyd, 97 A.D.3d 837 (2012). Petitioner then sought leave to appeal to the New York Court of Appeals, but his application was denied on October 29, 2012. (Pet. at 3; Resp.'s Aff. ¶ 11.) He did not seek certiorari from the U.S. Supreme Court. (Resp.'s Aff. ¶ 11.)

         On January 30, 2014, petitioner collaterally challenged his conviction in New York state court by moving to set aside his sentence pursuant to C.P.L. § 440.20. (Pet. at 4; Resp.'s Aff. ¶ 12.) Before the court ruled on the motion, he also moved to vacate his judgment pursuant to C.P.L. § 440.10(1)(h). In separate decisions, the court denied both motions on January 13, 2015. (Resp.'s Aff. ¶ 14; Pet. at 4.) Petitioner's applications for leave to appeal these decisions to the Appellate Division were denied on August 20, 2015 (Resp.'s Aff. ¶ 15), and his application for leave to appeal them to the Court of Appeals was denied on November 23, 2015 (id. ¶ 16).

         B. Procedural History

         Petitioner filed his petition for a writ of habeas corpus on March 1, 2016. (ECF No. 1.) Respondent filed his motion to dismiss the petition on March 31, 2016, arguing it is untimely. (ECF No. 5.) Petitioner filed a reply in opposition to the motion on July 8, ...


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