Opinion
00 CV 1632 (RR)
March 28, 2002
JOHN GRAHAM, Inmate No. 95-A-5421, Fishkill Correctional Facility, Marcy, New York, Petitioner Pro Se.
HONORABLE ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK New York, New York, Attorney for Respondent, By: Rebecca Ann Durden, Assistant Attorney General.
Memorandum and ORDER
John Graham, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Graham was convicted in 1995 after a jury trial in Queens County on charges arising out of the fatal shooting of Nigel Chamblin, specifically: one count of assault in the first degree, see N Y Penal Law § 120.10[1] (McKinney 1998), one count of criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03 (McKinney 2000), and two counts of criminal possession of a weapon in the third degree, see N Y Penal Law § 265.02 (McKinney 2000 Supp. 2002). Graham is presently incarcerated, having been sentenced to two indeterminate prison terms of five to fifteen years and two indeterminate prison terms of two and one-third to seven years, all to run concurrently.
On September 19, 1995, Graham moved in the Appellate Division, Second Department, for leave to file a late notice of appeal. The Second Department granted his motion on December 11, 1995, but Graham failed to perfect his appeal. See People v. Graham, No. 95-8840 (2d Dep't Dec. 11, 1995). On March 27, 1997, Graham filed a pro se petition for a writ of habeas corpus in state court challenging the conditions of his confinement and his failure to receive medical care. This application was denied as without merit on October 6, 1997. See People v. Graham, Ind. No. 5987/94 (Sup.Ct. Queens Co., Oct. 6, 1997). On September 12, 1997, Graham also filed a pro se motion to vacate his conviction pursuant to N.Y. Crim. Pro. Law § 440.10. Therein he complained that (1) his indictment had been obtained without affording him an opportunity to testify before the grand jury; (2) he had wrongfully been detained after dismissal of an early indictment; (3) his conditions of confinement were cruel and unusual; (4) insufficient evidence was presented to the grand jury on the charge of first-degree assault; (5) the trial judge erred in his instructions to the jury; (6) he was denied a speedy trial; and (7) prosecution witnesses committed perjury, and the victim's injuries were fabricated. The motion was denied on January 7, 1998, the trial court ruling that Graham's claims were both procedurally barred and without merit:
The issues raised herein regarding the legal sufficiency of the indictment, improprieties before the Grand Jury, the effectiveness of former counsel and the Court's failure to release defendant, have previously been raised by the defendant either orally or in writing and have already been ruled upon by this Court and other justices who handled the matter during its pendency.
Any errors claimed by the defendant with respect to his trial could have been raised on appeal. Since defendant failed to perfect his appeal, his current claims are procedurally barred and moreover, are also without merit.
Further, defendant has failed to show that any of his trial testimony was perjurious, that certain exhibits were fabricated or that there is newly discovered evidence which could not have been discovered with due diligence.People v. Graham, Ind. No. 5987/94 (Sup.Ct. Queens County, Jan. 7, 1998). Graham's application for leave to appeal the denial of his § 440.10 motion was denied on March 5, 1998. See People v. Graham, No. 98-1172 (2d Dep't Mar. 5, 1998).
Over twenty months later, on November 15, 1999, Graham filed his petition with this court. A careful reading of Graham's papers suggests that he believes he was (1) denied constitutionally effective counsel; (2) unlawfully detained after dismissal of his first indictment; (3) denied his right to appeal; (4) tried and convicted on the basis of a defective indictment; (5) subjected to judicial and prosecutorial misconduct, including the use of "false" evidence; (6) denied exculpatory evidence; and (7) denied a speedy trial.
Since § 2254 petitions are deemed to have been filed on or about the date they are delivered to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988), and since this court assumes that Graham's petition was so delivered on the date he signed it, i.e., November 15, 1999, that date is considered the date of filing.
Respondent opposes the petition on the grounds that it is time barred, procedurally barred, and, in any event, without merit. Having carefully reviewed the submissions of the parties, the court agrees that the petition is untimely and, therefore, dismisses on that ground.
Discussion
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which took effect on April 24, 1996, establishes a one-year limitations period for the filing of § 2254 petitions. That 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.28 U.S.C. § 2244(d)(1) (2002). Graham does not suggest, and nothing before this court indicates, that subparagraphs (B), (C), or (D) apply to his case. Accordingly, this court considers the issue of timeliness with reference only to § 2244(d)(1)(A).
Graham's failure to perfect his appeal makes it difficult to determine the specific date when his conviction became final. There can be no question that Graham's conviction was final by the time his § 440.10 motion was denied on March 5, 1998. Graham's failure to file for federal habeas relief until November 15, 1999, twenty months later, plainly renders his petition untimely.
The Second Department's rules state that
an unperfected criminal appeal by a defendant shall be deemed abandoned in all cases where no application has been made by the defendant for the assignment of counsel to prosecute the appeal within nine months of the date of the notice of appeal, unless, for good cause shown, an order shall have been entered on motion therefor extending such time.
22 N.Y.C.R.R. § 670.8(f) (2002). Graham neither applied for assignment of counsel nor moved for an extension as provided by this rule. The abandonment of his appeal, and implicitly the finality of his conviction, were noted by the New York State Supreme Court when it ruled that Graham' s § 440.10 motion was procedurally barred. See People v. Graham, Ind. No. 5987/94 (Sup.Ct. Queens County, Jan. 7, 1998).
The court notes that in opposing dismissal, Graham does not respond directly to the issue of timeliness. In reiterating his Sixth Amendment claim, however, he does describe himself as "the INNOCENT defendant."See Petitioner's Traverse, at 1.
The Second Circuit has yet to be presented with a case in which a colorable claim of "actual innocence" made it necessary to rule on whether the Constitution mandates an exception to AEPDA's limitations period in such circumstances. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000). In Lucidore, however, the Circuit made plain that a petitioner would not be able to argue for an exception unless he demonstrated "that he is actually innocent of the charges" on which he was convicted. Id. at 114. To demonstrate actual innocence, moreover, a habeas petitioner must present" "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.'" Id. (quoting Schlup v. Deo, 513 U.S. 298, 299 (1995)). Graham does not satisfy this standard since he offers no new evidence demonstrating his innocence but relies only on conclusory assertions that he was improperly convicted. On such a record, this court need not consider a constitutional exception to the limitations period for filing § 2254 claims.
The petition is dismissed as untimely.
Conclusion
For the reasons stated, the court finds that Graham's November 15, 1999 petition for a writ of habeas corpus was not timely filed under 28 U.S.C. § 2244 (b)(1)(A). Graham's petition for a writ of habeas corpus is denied as is a certificate of appealability.
SO ORDERED.