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Pittman v. Zhappiu

United States District Court, W.D. New York

November 17, 2017

MARIO PITTMAN, Petitioner,
v.
P. ZHAPPIU, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge

         INTRODUCTION

         Proceeding 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Under 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 counts.

         On 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.

         Petitioner 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 years.

         On 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).

         Petitioner then filed the instant habeas petition on June 29, 2015. Respondent answered the petition. Petitioner did not file a traverse.

         For the reasons discussed below, the petition is dismissed.

         DISCUSSION

         I. The Petition is Untimely

         Petitioner's 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).

         Where, 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 ...


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