Opinion
CV 99- 3981 (RR).
October 16, 2000.
ERIC COLEMAN, Naponoch, New York, Petitioner, Pro Se.
Seth M. Lieberman Assistant District Attorney, HONORABLE CHARLES J. HYNES, KINGS COUNTY DISTRICT ATTORNEY, Brooklyn, New York Attorney for Respondent.
Memorandum and ORDER
Eric Coleman, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 2000). Coleman was convicted on November 21, 1983, after a jury trial in New York State Supreme Court, Kings County, of one count of Murder in the Second Degree. See N.Y. Penal Law § 125.25 [1] (McKinney 1998). He is presently incarcerated serving a term of twenty-five years to life, imposed to run consecutively to a term of four to twelve years on an unrelated firearm possession case.
Coleman, who was eighteen years old at the time of the charged murder, apparently had two prior convictions for possession of firearms.
Coleman now challenges his murder conviction on the grounds that he was denied due process of law by the prosecution's improper suggestion in summation that he had threatened key witness Sharon Thompson, and by its failure to disclose materials relevant to impeaching Ms. Thompson's credibility. Petitioner further asserts that his appellate counsel was constitutionally ineffective in failing to appeal both the closure of the courtroom during portions of his trial and the representation afforded by trial counsel.
Respondent opposes the petition, arguing that it was not timely filed under 28 U.S.C. § 2244 (b)(1) (1996). Coleman replies that his petition is timely, particularly in light of the one-year grace period afforded by the Second Circuit in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and the tolling provisions of 28 U.S.C. § 2244 (d)(2). In the alternative, he submits that a timeliness dismissal would violate the Constitution's Suspension Clause, U.S. Const. art. I, § 9, cl. 2, because he is actually innocent of the crime of conviction.
Having carefully reviewed the submissions of the parties and the applicable law, this court finds that the petition was not filed within the time required by § 2244(b)(1). The court need not reach Coleman's Suspension Clause argument because petitioner cannot demonstrate actual innocence. The petition is hereby dismissed as untimely.
Factual Background
I. The Murder of Jose Valentin
Two eyewitnesses inculpated petitioner Eric Coleman in the January 19, 1980 murder of Jose Valentin. The first witness, fifteen-year old Richard Medina, testified that shortly before 6:00 P.M. on the day of the homicide, he was leaving a poolroom on Flushing Avenue in Brooklyn when he heard two gun shots. Turning in the direction of the sound, Medina observed Eric Coleman, whom he recognized from the neighborhood, running down the street with a gun in his hand. Another man ran close behind him. A short distance away on the same street, Medina saw his friend Jose Valentin clutching his stomach and falling to the ground. Running to Valentin's aid, Medina saw that his friend was bleeding in his chest area. In fact, Valentin would die later that day as a result of four gunshot wounds to his chest and abdomen.
The other eyewitness to Valentin's murder was Sharon Thompson. She testified that she was walking on Flushing Avenue on January 19, 1980 when she saw Coleman, whom she had known for ten years, fire the fatal shots directly at Jose Valentin. On cross-examination, Ms. Thompson admitted that for two years after Valentin's death she had repeatedly denied any knowledge of the shooting to the police. She did not disclose Coleman's role in the murder until 1982, a short while after filing a criminal complaint against him for assault. On redirect examination, Ms. Thompson explained that her complaint arose out of an altercation during which Coleman had attacked her with a chair leg, breaking her arm. What the prosecution was not allowed to elicit, however, was Ms. Thompson's claim that Coleman had explicitly threatened to harm her if she ever identified him as Valentin's killer. Instead, she was permitted to explain more generally that the reason she had not come forward sooner with information about the Valentin murder was because she believed "Eric [Coleman] probably would have killed me." Trial Trans. 457.
In a further attempt to impeach Ms. Thompson, the defense called Linda Watts, who testified that she had been with Ms. Thompson on the evening of the Valentin murder and that the two women did not arrive on the murder scene until after the shooting had occurred and as the coroner was removing the victim's body. On cross-examination, the prosecution elicited that Ms. Watts had a close tie to the petitioner: he was the father of her sister's child. It further demonstrated that Ms. Watts had lied on direct examination about her own criminal history.
In summation, defense counsel urged the jury to reject Ms. Thompson's belated identification of Coleman as the vengeful product of a personal dispute between the witness and the accused. The prosecution countered by suggesting that Coleman's physical attack on Ms. Thompson actually supported her claim that for two years she had been afraid of the consequences if she revealed petitioner's role in the murder.
The specific summation argument now challenged in this petition is as follows:
[The beating] I submit to you ladies and gentlemen explains a good many things that you heard about. It explains the fact that Sharon Thompson didn't go to the police the night of the killing. It explains the fact that Sharon Thompson told the police she didn't know anything about the killing, not once, not twice, but many times. And over a period years. She told you why. She was in fear for her life. She told you that at the time of the crime she lived in the neighborhood, that she stayed living in that neighborhood. She told you she was in fear for her life, and sure enough, on January 18th of a subsequent year what happens? The defendant beats her with the leg of a chair. Beats her on the head. Beats her on the body. Ladies and gentlemen if she ever had any reason to think that she should be in fear it[']s surely been confirmed now.
Trial Trans. 582.
On October 26, 1983, the jury found Coleman guilty of the second degree murder of Jose Valentin.
2. Procedural History
a. Direct Appeal
On direct appeal, Coleman challenged his conviction on numerous grounds. In a brief filed by his attorney he asserted that (1) Medina's in-court identification of him as the shooter was tainted by a suggestive pre-trial photo array, (2) the prosecution impermissibly sought to bolster the credibility of one of its witnesses, (3) the trial court erred in refusing to charge the lesser crime of second degree manslaughter, and (4) the sentence imposed was excessive. In a supplemental pro se brief, Coleman argued that (5) the trial evidence was insufficient to support a guilty verdict, (6) he was improperly denied the opportunity to call a police detective as a defense witness, (7) the court erred in charging on the burden of proof, (8) the witnesses Medina and Thompson should have been required to testify at a pre-trial suppression hearing regarding their identification of petitioner, and (9) the prosecutor failed to disclose evidence material to Ms. Thompson's credibility.
On November 12, 1985, the Appellate Division, Second Department, affirmed Coleman's conviction. People v. Coleman, 114 A.D.2d 906, 495 N.Y.S.2d 78 (2d Dep't 1985). The court ruled that the photo array shown to Medina was not unduly suggestive. Id. at 906, 495 N.Y.S.2d at 79. It similarly found no prejudice to ensue from the prosecution's purported effort at bolstering since objection was promptly sustained, and the jury was carefully instructed to disregard the conduct. Id. The court rejected the defense claim about the uncalled detective witness finding that any testimony he could have provided about inconsistencies in the prior statements of a prosecution witness had been adequately developed on cross-examination. Id. The appellate court also found the evidence sufficient to prove guilt beyond a reasonable doubt. Id. It rejected the argument that manslaughter should have been charged as a lesser possible offense. Id. at 907, 495 N.Y.S.2d at 79-80. It similarly rejected the claim that the sentence imposed was excessive. Id. It ruled that any remaining arguments had "not been preserved for appellate review" and, in any event, did not warrant further review in the interest of justice. Id.
Defendant's sought leave to appeal to the New York Court of Appeals, which application was denied on December 16, 1985.People v. Coleman, 68 N.Y.2d 1038, 499 N.Y.S.2d 1036 (1985).
b. First § 440 Motion
In the interim, Coleman filed papers with the New York Supreme Court dated May 28, 1985, May 29, 1985, and August 24, 1985, moving to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1994 Supp. 1999) on the grounds that the jury charge was inadequate and that his trial counsel was ineffective. The motion was summarily denied on October 28, 1985, the court finding that Coleman's claims could be raised in his then pending appeal. See People v. Coleman, Ind. No. 5930/82 (N.Y.Sup.Ct. Kings Co., Oct. 28, 1985). Leave to appeal was denied by the Appellate Division on August 20, 1986. See People v. Coleman, Ind. No. 5390/82 (N.Y.Sup.Ct. A.D. 2nd Dept., Aug. 20, 1986).
c. FOIL Requests
Some seven years later, beginning in 1992 and continuing through 1997 Coleman filed a series of requests with the Kings County District Attorney's Office under the New York Freedom of Information Law (hereinafter "FOIL") requesting a host of documents relating to his case. See N.Y. Pub. Off. Law Art. 6 (McKinney 1988 Supp. 2000). Over the years several disclosures were made, including two on May 31, 1996, which relate to documents discussed in Coleman's due process claim before this court: (1) a UF-61 complaint form in which Sharon Thompson accused petitioner of assault, and (2) the prosecutor's "information sheet" regarding the grand jury presentation against Coleman for the Valentin homicide. Although petitioner continued to make FOIL demands through the middle of 1997, his own submissions indicate that nothing more was provided to him after May 1996 except for his sentencing minutes, which he received sometime in 1998.
d. Second § 440 Motion
On June 19, 1997, Coleman filed his second motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. This time, he complained that the prosecution had failed to disclose information material to impeaching prosecution witness Sharon Thompson, specifically, the UF-61 form relating to her assault complaint and a subsequent police interview report, as required by federal and state law. See Brady v. Maryland, 373 U.S. 83 (1963); People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). Coleman further complained that he had not been advised at trial as to the persons who had testified against him in the grand jury. The court denied the motion to vacate Coleman's conviction finding that petitioner's claims had already been rejected on direct appeal and, in any event, were "contradicted by the trial transcript." People v. Coleman, Ind. No. 5930/82 (N.Y.Sup.Ct. Kings Co., July 25, 1997). Leave to appeal was denied by the Appellate Division on November 21, 1997. See People v. Coleman, Ind. No. 5390/82 (N.Y.Sup.Ct. A.D. 2nd Dept., Nov. 21, 1997).
It is unclear whether the interview report was provided to Coleman in May 1996 along with other FOIL disclosures, or whether he had obtained this document earlier.
On August 12, 1997, Coleman moved for reconsideration, submitting that the Brady/Rosario claim he raised on direct appeal was not the same as the one he now raised in his § 440 motion. On direct appeal, he had complained that certain impeachment material was disclosed belatedly at trial. In his § 440 motion, he was complaining that impeachment material obtained through his FOIL requests had never been disclosed at trial. The court refused to reconsider its rulings. It found that Coleman had failed to demonstrate that the information at issue had not been disclosed at trial, much less that it constituted Brady/Rosario material. In any event, he had failed to show good cause for not raising this issue of non-disclosure on direct appeal or in his first § 440 motion. See People v. Coleman, Ind. No. 5930/82 (N.Y.Sup.Ct. Kings Co., Oct. 2, 1997). Leave to appeal the refusal to reconsider Coleman's motion was denied by the Appellate Division on December 22, 1997. See People v. Coleman, Ind. No. 5390/82 (N.Y.Sup.Ct. A.D. 2nd Dept., Dec. 22, 1997).
e. Coram Nobis
On October 21, 1998, Coleman applied to the Appellate Division for a writ of error coram nobis on the grounds that his appellate counsel had been ineffective in failing to argue on appeal that (1) the trial court had erred in briefly excluding Coleman's mother from a portion of the proceedings relating to Ms. Thompson's need to return to court, and (2) trial counsel had been constitutionally ineffective both in his questioning of witnesses at trial and in his failure to advise petitioner of his right to testify. The writ was summarily denied on June 21, 1999.See People v. Coleman, 262 A.D.2d 579, 691 N.Y.S.2d 793 (1999)
f. Federal Petition for Habeas Corpus Relief
In papers dated July 7, 1999, Coleman petitioned this court for a writ of habeas corpus vacating his conviction for the murder of Jose Valentin.
Discussion
I. Timeliness of § 2254 Petition
Respondent submits that Coleman's petition must be dismissed as untimely in light of limitations imposed by the Antiterrorism and Effective Death penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). That statute, which took effect on April 24, 1996, established a one-year limitations period for filing petitions for habeas corpus relief. See 28 U.S.C. § 2244 (d)(1). The period runs from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id.
Plainly, this is not a case governed by subparagraph (C) since there is no newly recognized constitutional right at issue in Coleman's case. Neither is subparagraph (B) applicable. If, as Coleman complains, the state failed to reply promptly to his numerous FOIL requests, this "impediment" to his federal filing would, at best, present an issue of compliance with state law, not a "violation of the Constitution or laws of the United States."
As for subparagraph (D), the court declines to rely on it in calculating the start of the limitations period in this case since it appears from the record that Coleman was on notice of each of the claims he raises in his habeas petition well before his direct appeal was resolved in 1985, some fourteen years before he filed with this court.
Certainly, he had heard the prosecution's summation during his trial and, thus, could have promptly raised the claim that it unfairly characterized the evidence before the jury. Similarly, Coleman witnessed the closure of the courtroom and his attorney's trial performance. If he thought appellate counsel was ineffective for not raising these two points on direct appeal, petitioner could have included them in his own supplemental pro se brief. In the alternative, he could have promptly challenged appellate counsel's representation as soon as the direct appeal was concluded in 1985 rather than waiting until 1998 to file his coram nobis petition.
As the excerpt quoted supra indicates, the challenged summation argument was consistent with the evidence adduced. Coleman's real quarrel appears to be with Ms. Thompson's veracity, an issue resolved against him by the jury.
Coleman is correct in noting that his ability to file an appellate brief pro se would not affect the first factor relevant to any Sixth Amendment claim, i.e., the objective reasonableness of counsel's representation. Nevertheless, it would likely preclude petitioner from establishing the second factor, i.e, ensuing prejudice. See Strickland v. Washington, 46 U.S. 668, 693-694 (1984).
To the extent Coleman seeks to excuse his delay in filing by noting his inability to procure his sentencing minutes until 1998, his argument is unpersuasive. As the Fifth Circuit explained in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998), a habeas petitioner cannot confuse
Coleman submits that to the extent the minutes record his prior complaint about counsel's failure to advise him of his right to testify, they served notice on appellate counsel that a Sixth Amendment challenge should have been raised. In fact, although Coleman complained at length about the witnesses, the prosecutor, the jurors, and the judge at the time of sentencing, the transcript does not reveal his dissatisfaction with trial counsel.
his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of that claim. . . . Section 2244(b)(1)(D) does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every possible scrap of evidence that might . . . support his claim.Id. at 199; see also Hector v. Greiner, 99 CV 7863 (FB), 2000 WL 1240010 *1 (E.D.N.Y. Aug. 29, 2000) (rejecting claim that under § 2244(b)(1)(D), time to file habeas claim of ineffective assistance started to run when petitioner had procured supporting transcripts and treatises; such evidence could have been discovered earlier through due diligence).
Finally, as for Coleman's due process claim that the prosecution had failed to disclose the complaint and interview forms relating to petitioner's assault on Ms. Thompson, the record indicates that these items were discussed on numerous occasions throughout trial. Presumably, the defense could simply have requested production from the court. Certainly, nothing explains why Coleman waited more than a dozen years, until 1996, to make a FOIL request for these documents. See Petitioner's Exh. C-13. As our colleague Judge Wexler has noted, where documents could "have been obtained earlier through the exercise of due diligence," a petitioner's procurement of them under a belated FOIL request does not constitute "new evidence" under § 2244(b)(1)(D). Sorce v. Artuz, 73 F. Supp.2d 292, 298 (E.D.N.Y. Nov. 10, 1999); see also Devraux v. Schriver, 98 Civ. 7563 (MBM), 1999 WL 1095580 *3 (S.D.N.Y. Dec. 3, 1999); Tineo v. Strack, CV 98-834 (RID), 1998 WL 938950 *3 (E.D.N.Y. Nov. 12, 1998); Youngblood v. Greiner, 97 Civ. 3289 (DLC), 1998 WL 72068 *6 (S.D.N.Y. Oct. 13, 1998).
In his FOIL request, Coleman claims that he learned of the existence of these documents from an earlier produced police report. In fact, the prosecution expressly acknowledged its possession of these materials at trial. See Trial Trans 282-83, 428.
Having found that § 2244(b)(1)(B), (C), and (D) are all inapplicable to this case, the court focuses on § 2244(b)(1)(A), which provides for timeliness to be determined with reference to the date a petitioner's conviction became final. The latest date by which Coleman's murder conviction became final is February 14, 1986, sixty days from December 16, 1985, when his application for leave to appeal to the New York Court of Appeals was denied, and the date by which his time to apply for a writ of certiorari to the United States Supreme Court expired. See Bennett Boskey and Eugene Gressman, The Supreme Court's New Rules for the Eighties, 85 F.R.D. 487, 488 (1980) (rules require petitioners to file for certiorari within 60 days of the state court decision being challenged).
Of course, February 14, 1986 predates by ten years the enactment of the AEDPA. That statute does not specifically indicate how its time requirements should apply to cases such as this one that became final before its April 24, 1996 effective date. The Second Circuit, however, has ruled that in such circumstances, petitioners should be afforded a one-year grace period from the statute's effective date, i.e., until April 24, 1997, to file for federal relief. See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Coleman's July 7, 1999 submission was filed more than two years beyond the grace period afforded by Ross and, thus, must be deemed untimely.
Coleman seeks to avoid this conclusion by misinterpreting Ross to give him one year from April 24, 1997 to file for relief. Further, he submits that any time prior to 1997 when he had a collateral challenge to his conviction pending, specifically, his first § 440 motion, entitles him to additional time pursuant to the tolling provision of 28 U.S.C. § 2244 (d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection"). As a result of this imaginative reading of statute and case law, Coleman submits that he had 550 days from April 24, 1997 within which to file his federal petition. He further submits that this 550-day period was tolled while his second § 440 motion and his coram nobis petition were pending, such that his July 7, 1999 filing with this court was timely.
This court disagrees. The one-year grace period provided in Ross starts on April 24, 1996 and ends on April 24, 1997. Section 2244(d)(2) will toll the grace period for collateral proceedings pending during that one year, but it does not add additional time for collateral proceedings that concluded before April 24, 1996 or that were not commenced until after April 24, 1997. In this case, Coleman had no collateral proceedings pending between August 20, 1986, when he was denied leave to appeal his first § 440 motion, and June 19, 1997, when he filed his second § 440 motion. Under these circumstances, any § 2254 motion filed after April 24, 1997 is untimely under § 2244(b)(1)(A) and the relevant case law. Coleman's petition, filed July 7, 1999, must therefore be dismissed.
II. Suspension Clause
Coleman submits that any dismissal of his habeas petition on timeliness grounds would violate the Constitution's Suspension Clause, since he is actually innocent of the crime of conviction.
Article 1, Section 9, clause 2 of the Constitution, commonly referred to as the Suspension Clause, provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Second Circuit has already rejected the argument that the time limitations on habeas corpus petitions imposed by § 2244(b)(1) constitute a per se violation of the Suspension Clause.See Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'd on opinion below, 990 F. Supp. 275 (S.D.N Y 1998). As the Court recently explained in Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000):
because AEDPA's one year statute of limitations leaves habeas petitions with some reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy inadequate or ineffective to test the legality of detention, and therefore does not per se constitute an unconstitutional suspension of the writ of habeas corpus.
(citations omitted).
The Court of Appeals has not yet found it necessary to rule definitively on whether the Suspension Clause or any other part of the Constitution mandates an "actual innocence" exception to the habeas statute of limitations for the simple reason that it has not yet been presented with a case of actual innocence. Id. at 114 (issue remains unresolved because petitioner does not show actual innocence).
To establish actual innocence, a habeas petitioner must come forward with "new reliable evidence that was not presented at trial" and "show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 299 (1995); accord Lucidore v. New York State Div. of Parole, 109 F.3d at 114. Coleman cannot satisfy this standard.
The only "new" evidence to which he points are the complaint and interview forms relating to Ms. Thompson's 1982 assault complaint see Respondent's Exh. Q and R, and the information sheet in the Valentin case, see Respondent's Exh. S. This hardly qualifies as "new" evidence since, as already noted, petitioner was aware of the existence of these materials at trial and waited a dozen years to request them. See United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir. 2000 (new evidence is incapable of discovery through due diligence before or during trial); United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (same); see also Sorce v. Artuz, 73 F. Supp.2d at 298 (rejecting "new evidence" claim in context of § 2244(b)(1)(D)).
Further, these documents do not establish Coleman's actual innocence in the Valentin murder. At best, they evidence some discrepancies between Sharon Thompson's trial testimony and her contemporaneous reports to the police about petitioner's 1982 assault. For example, Ms. Thompson testified at trial that Coleman had beaten her with a chair leg, breaking her arm. In 1982, she told the police he had hit her with a chair, but the reports make no mention of the broken arm. The reports indicate that Coleman brandished a gun during the assault and threatened to kill Ms. Thompson. At trial, Ms. Thompson stated that Coleman never threatened to "kill" her. of course, the trial court imposed strict limitations on Ms. Thompson's ability to testify about precisely what Coleman had said to her, particularly after the government proffered that she would testify to threats of harm if she revealed Coleman's role in the Valentin murder. The reports linked the assault to an unspecified event occurring approximately one year earlier. In fact, the Valentin murder had occurred some two years previously.
These discrepancies are not so material as to support the conclusion that their disclosure at trial would have made it unlikely that any reasonable jury would have voted to convict Coleman. Courts have long taken the view that "[n]ew evidence that is merely impeaching will not ordinarily justify a new trial." United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995). This is particularly so where, as in this case, the discrepancies concern a collateral matter and do "not directly contradict the government's case." See United States v. Aguillar, 387 F.2d 625, 626 (2d Cir. 1967) (quoted in United States v. Zagari, 111 F.3d at 320).
Further, even where new impeachment material relates to a key witness, a conviction will not be vacated if the record demonstrates that the defense had other opportunities to attack the witness's credibility before the jury. See United States v. Gambino, 59 F.3d 353, 365-66 (2d Cir. 1995) (new evidence that prosecution witness Sammy Gravano was involved in an undisclosed conspiracy to import heroin did not warrant a new trial because it was cumulative of other wrongdoing by the witness about which the defense had ample opportunity to cross examine). In this case, defense counsel vigorously attacked Ms. Thompson's credibility, emphasizing her long history of drug abuse, her repeated statements over two years that she knew nothing about the Valentin murder, the temporal connection between her identification of Coleman as the murderer and his assault of her, and the contradictory testimony of Linda Watts. The materials to which Coleman now points would have added little to this attack. To the contrary, any inquiry based on them might well have opened the door to Ms. Thompson testifying about Coleman's threats to harm her if she revealed his role in the Valentin murder.
Having carefully reviewed the record, this court is convinced that the documents relied on by Coleman were known to exist at the time of trial and, thus, are not "newly discovered." Further, they do not evidence petitioner's actual innocence of the charged crime. Indeed, they do not even add anything material to the jury's ability to scrutinize the credibility of Sharon Thompson. Under these circumstances, there is no reason to create a constitutional exception to the limitations period imposed by federal law on § 2254 petitions. Coleman's Suspension Clause claim is denied.
Conclusion
For the reasons stated, this court finds that Eric Coleman's July 7, 1999 petition for a writ of habeas corpus vacating his 1983 New York State conviction for second degree murder was not timely filed under § 2244(b)(1) and the relevant case law interpreting that limitations period. Because petitioner has not shown that he is actually innocent of the crime of conviction, there is no reason for this court to consider a constitutional exception to this limitations period.
SO ORDERED.