Opinion
No. 03Civ.02737(BSJ)(RLE).
March 28, 2005.
Corey Jackson, Stormville, NY, pro se.
MEMORANDUM OPINION ORDER
Petitioner Corey Jackson ("Jackson") moves for a stay of the habeas corpus proceeding to allow him to raise a claim in the state court that his consecutive sentences for the murder of three people violates Apprendi v. New Jersey, 530 U.S. 466 (2000). For the foregoing reasons, the motion is DENIED.
On May 1, 2000, then pro se petitioner Jackson filed a habeas corpus petition. Respondent answered the petition on July 6, 2000. On July 9, 2001, Jackson requested that the district court either "hold his original petition in abeyance . . . or dismiss it without prejudice" until he could exhaust a new matter in state court. District Judge Deborah A. Batts dismissed the petition without prejudice on July 24, 2001. On October 10, 2001, Jackson filed a New York State Criminal Procedure Law § 440.10 motion to vacate the judgment against him. The motion was thirty-one pages long, contained a number of complex arguments, and cited extensive legal authority. On October 10, 2002, the Supreme Court, Bronx County, denied Jackson's motion. Jackson moved for leave to appeal the denial. The Appellate Division, First Department, denied Jackson's motion on January 21, 2003.
On April 21, 2003, Jackson filed another habeas corpus petition pursuant to 28 U.S.C. § 2254, which is pending before this Court. By then, the one year statute of limitations for habeas corpus petitions had expired. However, Jackson's assigned counsel and respondent agreed to toll the statute of limitations, and, on August 11, 2003, District Judge John S. Martin Jr., tolled the statute of limitations. On October 28, 2003, respondent answered the second petition. On May 26, 2004, Jackson moved to add an additional claim to his habeas petition, and respondent opposed.
On July 7, 2004, Jackson moved to stay the habeas corpus petition for a second time so that he could raise a state court claim that his consecutive sentences for the intentional murders of three people violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Responded opposed, asserting that the claim was barred because Jackson failed to raise it during the pendency of his first habeas petition and when he returned to state court with his New York Criminal Procedure Law § 440.10 motion. This Court agrees with respondent. Jackson filed his claim in state court in October 10, 2001. Apprendi, 530 U.S. at 466, was decided on June 26, 2000. Therefore, Jackson could have raised his claim in the state court proceeding. Accordingly, his motion is DENIED. SO ORDERED.