United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
pro se, Mario Pittman (“Petitioner”) has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. 2254 alleging that he is unconstitutionally
incarcerated in Respondent's custody pursuant to a
judgment entered November 23, 2010, in New York State Supreme
Court, Erie County (Kloch, A.J.), following a jury trial at
which he was convicted of first-degree attempted murder (N.Y.
Penal Law §§ 110.00, 125.27(1)(a)(i); (b))
second-degree criminal possession of a weapon (id.,
§ 265.03(former (2))); and third-degree criminal
possession of a weapon (id., § 265.02(1)).
Petitioner is presently serving his sentence.
BACKGROUND AND PROCEDURAL HISTORY
Erie County Indictment No. 00887-2005, Petitioner was charged
with first-degree attempted murder (P.L. §§ 110.00,
125.27(1)(a)(i)), two counts of second-degree attempted
(intentional) murder (id., §§ 110.00,
125.25(1)), second-degree criminal possession of a weapon
(id., § 265.03(former (2)), and third-degree
criminal possession of a weapon (id., §
265.02(1)). The charges stemmed from an incident on April 7,
2005, in which Petitioner allegedly attempted to fatally
shoot Buffalo Police Department Officers Thomas English
(“English”) and Gregory Braswell
(“Braswell”) with a revolver. Petitioner was
tried before a jury in New York State Erie County Court
(Amico, J.). He was acquitted of second-degree attempted
murder with regard to Braswell but convicted of the remaining
March 14, 2008, the Appellate Division, Fourth Department, of
New York State Supreme Court (“the Fourth
Department”) reversed the judgment of conviction on the
law and granted a new trial. In a 4-1 decision, the Fourth
Department found that the trial court “erred in
permitting the People to present evidence concerning his
conviction of attempted criminal possession of a weapon in
the second degree arising from a 1998 incident in which
defendant attempted to shoot a police officer.”
People v. Pittman, 49 A.D.3d 1166, 1167, 854
N.Y.S.2d 623, 624 (4th Dep't 2008). Finding that the
potential for prejudice outweighed the probative value of
that evidence, the majority found the evidentiary error not
harmless and reversed Petitioner's conviction.
proceeded to a re-trial before Associate Justice Richard
Kloch, Sr. in Erie County Supreme Court. As noted above, the
jury returned a verdict convicting Petitioner of first-degree
attempted murder and related weapons-possession charges. He
was sentenced as a persistent violent felony offender to four
consecutive indeterminate terms of imprisonment with the
maximum term of life and the minimum term of twenty-five
direct appea1, Petitioner's appellate counsel raised the
following grounds for reversal: the trial court's
erroneously refused to hold a competency hearing; the trial
court erred in denying two for-cause challenges by defense
counsel during jury selection; the trial court erred in
admitting testimony by one of the victims, Braswell; the
verdict was against the weight of the credible evidence and
not supported by legally sufficient evidence; Petitioner was
excluded from a material stage of the trial; the prosecutor
committed misconduct; and the sentence was harsh and
excessive. By an order dated September 27, 2013, the Fourth
Department unanimously affirmed the conviction. People v.
Pittman, 109 A.D.3d 1080, 91 N.Y.S.2d 600
(4th Dep't 2013). The New York Court of
Appeals denied leave to appeal on December 30, 2013.
People v. Pittman, 22 N.Y.3d 1043 (2013).
then filed the instant habeas petition on June 29, 2015.
Respondent answered the petition. Petitioner did not file a
reasons discussed below, the petition is dismissed.
The Petition is Untimely
petition post-dates the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which sets forth a one-year limitations period for filing
habeas petitions. The start-date of the limitations period
can vary but in most cases-including this one-the period
commences after the prisoner's state conviction becomes
final. Thus, the conviction became final on the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review,
pursuant to 28 U.S.C. § 2244(d)(1)(A).
as here, the prisoner has actually appealed the conviction,
the limitations period begins to run after the expiration of
the ninety-day period within which a petition for a writ of
certiorari may be filed in the United States Supreme
Court, even if such a petition is not actually filed.
See 28 U.S.C. § 2244(d)(1)(A); Clay v.
United States, 537 U.S. 522, 525 (2003) (“[A]
judgment of conviction becomes final when the time ...