Opinion
01 Civ. 7744 (TPG)
September 30, 2002
OPINION
This is a habeas corpus petition by a state prisoner, filed pursuant to 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the court has examined the petition and has determined that it must be summarily dismissed.
There is an initial question about whether the petition is barred by the statute of limitations. Normally there is a one-year limitation running from the date when the judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). However, the limitation period is tolled during the pendency of a post-conviction motion. § 2244(d)(2). Beyond this, there may be equitable tolling based on exceptional circumstances.Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000). Petitioner's conviction became final on August 5, 1999. The present petition was not filed until June 25, 2001. On August 17, 2001 Chief Judge Mukasey entered an order describing the statute of limitations and asking petitioner to explain his delay in filing the habeas corpus petition. Petitioner responded with an affirmation dated October 5, 2001. According to the affirmation, petitioner filed a motion under C.P.L. § 440.20 on July 26, 2000. This was 11 months and 21 days after August 5, 1999. The filing of the motion tolled the expiration of the one-year period. The state court motion was denied on November 2, 2000 and leave to appeal was denied on December 21, 2000. However, petitioner asserts in his affirmation that the order denying leave to appeal was not delivered to him until June 2001, and he has attached to his affirmation a copy of an envelope bearing the return address of the Appellate Division, postmarked June 6, 2001. It is the view of the court that equitable tolling lasted into June 2001. The present habeas corpus petition was filed June 25, 2001. The court rules that the petition is not barred by the statute of limitations.
The petition asserts two grounds: (1) that the verdict was against the weight of the evidence, and (2) that the sentence of 15 years to life was unduly harsh.
With regard to the first ground, petitioner was convicted of second degree robbery, second degree assault and attempted robbery in the third degree. It appears that the prosecution needed to prove display of a firearm for the second degree robbery count, and injury to a police officer for the second degree assault count. Petitioner claims that any finding by the jury of these elements was against the weight of the evidence. However, this claim cannot be the basis of federal habeas corpus relief because it simply does not raise a constitutional issue.
With regard to the second claim, dealing with the sentence, petitioner complains that, prior to the trial, the prosecutor offered to have the case disposed of on the basis of a term of six years to life, which was rejected, and then offered a disposition on the basis of a sentence of eight years to life, which was also rejected. Petitioner claims that he has been penalized for exercising his right to go to trial. In response to this argument, it hardly needs to be said that sentences are frequently higher after trial than they might have been had the defendant pleaded guilty. Petitioner's contention does not raise a constitutional issue.
An important consideration in the sentence was the fact that petitioner had two prior convictions for violent felonies. Petitioner was sentenced as a "persistent violent felony offender." Petitioner complains that the sentencing judge at one point used the phrase "predicate violent felony offender." However, the mistake was corrected. The issue is simply not one of substance, much less of constitutional dimension.
The petition is dismissed. Petitioner's motion requesting the assignment of an attorney is denied.
Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.