Opinion
No. CV 00-2173 (RR).
November 13, 2000
SAMUEL L. JACKSON Inmate No. 91-R-3715 Oneida Correctional Facility Box 4580 Rome, New York 13442 Petitioner, Pro Se
HONORABLE ELLIOT SPITZER ATTORNEY GENERAL OF THE STATE OF NEW YORK 120 Broadway New York, New York 10271 Attorney for the Respondent.
HONORABLE CHARLES J. HYNES KINGS COUNTY DISTRICT ATTORNEY Renaissance Plaza 350 Jay Street Brooklyn, New York 11201 By: Morgan J. Dennehy, Assistant District Attorney Attorney for Respondent
Memorandum and ORDER
Samuel L. Jackson, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 8, 1988, Jackson was convicted pursuant to his guilty plea in the New York Supreme Court, Kings County, to the crime of attempted criminal possession of a weapon in the third degree, see N.Y. Penal Law § 110.00, § 265.02 (McKinney 2000), and sentenced to a prison term of one and one-half to three years. Jackson now challenges his conviction on the grounds that (1) the Double Jeopardy Clause of the Fifth Amendment barred his prosecution, (2) his right to testify before the grand jury that returned his indictment was violated, and (3) he did not receive a speedy trial. Respondent opposes the petition on the grounds that it is time-barred. He further asserts that the second and third claims, which were never raised in state court, are procedurally barred. Having carefully reviewed the submissions of the parties, the court agrees that the petition must be dismissed as untimely.
Procedural History
On January 19, 1987, petitioner Samuel L. Jackson was arrested in Brooklyn in possession of a loaded .25 caliber semi-automatic handgun with a defaced serial number. On July 18, 1988, pursuant to an agreement with the prosecution, Jackson pleaded guilty to the lesser charge of attempted criminal possession of a weapon in the third degree. See N.Y. Penal Law § 110.00, § 265.02. On August 8, 1988, he was sentenced to an agreed-upon prison term of one and one-half to three years. No direct appeal to this conviction was ever filed.
Instead, on July 15, 1999, almost eleven years later, Jackson filed a motion pursuant to New York Crim. Pro. Law § 440.20 (McKinney 1994 Supp. 1999), challenging his conviction on double jeopardy grounds. In essence, he claimed that the dismissal of the original felony complaint against him precluded the government from thereafter prosecuting him on that charge. Not surprisingly, given that the original felony complaint against Jackson had been dismissed without prejudice, the New York Supreme Court, Kings County (Coffinas, J.), rejected this double jeopardy claim on its merits. See People v. Jackson, Ind. No. 1121-87 (N.Y.Sup.Ct. Kings Co., Aug. 26, 1999). On September 4, 1999, Jackson applied for leave to appeal the decision to the New York Supreme Court, Appellate Division, Second Department, which application was denied on December 23, 1999. See People v. Jackson, Ind. No. 1121/87 (N.Y.Sup.Ct. A.D. 2nd Dept., Dec. 29).
On June 13, 2000, Jackson filed his petition for a federal writ of habeas corpus with this court.
Discussion
The respondent moves for dismissal of Jackson's petition on the grounds that it was not filed within the time limitations established by the Antiterrorism and Effective Death Penalty Act of 1986 ("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 to run 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.See 28 U.S.C. § 2244(d)(1).
Jackson does not suggest that subparagraphs (B)-(D) apply to his case. Accordingly, the court focuses on § 2244(d)(1)(A). Id. Since Jackson never filed a direct appeal, his conviction became final under that section on September 7, 1988, when his time to appeal lapsed under New York law. See N.Y. Crim. Proc. Law § 460.10 (McKinney 1994 Supp. 2000) (defendant has "thirty days after [the] imposition of [his] sentence" in which to appeal). It was not until June 13, 2000, almost twelve years later, that Jackson filed his federal habeas petition.
The AEDPA does not specifically state how its provisions apply to cases such as this one in which a conviction became final some years before the enactment of that statute. In Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), however, the Second Circuit ruled that a prisoner whose conviction became final before the April 24, 1996 effective date of the AEDPA must be afforded a one-year grace period from the date of enactment to file a petition for habeas corpus relief with the federal court. Id. at 103. Thus, Jackson was required to file for federal habeas corpus relief on or before April24, 1997. His January 11, 2000 filing was plainly untimely.
The court notes that the statute of limitations under the AEDPA and the grace period recognized in Ross v. Artuz is tolled while a petitioner pursues a state collateral attack on his conviction. See 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."). In this case, Jackson's sole state collateral attack on his conviction was not filed until July 15, 1999, almost eleven years after his conviction became final and more than two years after the Ross grace period had expired. In sum, 28 U.S.C. § 2244(d)(2) cannot excuse the untimeliness of Jackson's filing.
In a final effort to avoid dismissal, Jackson argues that the time limitations established by the AEDPA do not bar his petition because the state court below never adjudicated his double jeopardy claim on the merits. This claim is not supported in law or fact.
Jackson relies on Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999), a case that applies de novo review to habeas claims not adjudicated on the merits in state court id. at 258 ("When a petitioner has properly presented a claim to the state court but the state court has not adjudicated the claim on the merits . . . our review of question of law and mixed questions of law and fact is de novo [and not controlled by the AEDPA standards of review]"). The reasoning in Weeks is, of course, inapplicable to the inquiry at hand as this court is barred from reaching the merits of Jackson's petition on timeliness grounds. Further, the factual premise of this claim is unsupported by the record. The New York Supreme Court considering Jackson's motion to vacate his sentence rejected the petitioner's double jeopardy claim "for the reasons stated in the District Attorney's opposing papers." People v. Jackson, Ind. No. 1121-87 (N.Y.Sup.Ct. Kings Co., Aug. 26, 1999). This was a ruling on the merits since the sole argument raised by the District Attorney was that double jeopardy does not bar a subsequent prosecution when the original complaint was dismissed without prejudice. (See Respondent's Opp. to Jackson's § 440 Motion at ¶ 10). This conclusion is consistent with federal court interpretations of the law against double jeopardy. See United States v. Huang, 960 F.2d 1128 (2d. Cir. 1998) (conviction on second trial did not violate double jeopardy where first mistrial was dismissed without prejudice); United States v. Rosa, 17 F.3d 1531 (2d Cir. 1994) (same). Moreover, as our colleague Judge Scheindlin has observed, the fact that a habeas petitioner's claims were "summarily dismissed" by a state court does not mean that they were not ""adjudicated on the merits' for purposes of § 2254(d)." Berdecia v. Lacy, 2000 WL 1072306 at *4 (S.D.N.Y. 2000); Salcedo v. Artuz, 107 F. Supp.2d 405, 412 (S.D.N.Y. 2000); see also, Thomas v. Taylor, 170 F.3d 466, 474 (4th Cir. 1999) ("[T]he phrase "adjudication on the merits' in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in summary fashion"); accord Weeks v. Angelone, 176 F.3d at 259 ("Where . . . [the] state . . . court has adjudicated a claim on the merits but has given no indication of how it reached its decision, a federal habeas court must still apply the AEDPA standards of review").
In fact, however, the state court's rejection of Jackson's double jeopardy claim on the merits is irrelevant to the timeliness issue before this court. Although some courts have held that a state court's failure to the address the merits of a claim may affect the level of review subsequently afforded by a federal habeas court see Weeks v. Angelone, 176 F.3d at 258, no court has ever held that it can resurrect an untimely claim. This court concludes that it cannot.
Conclusion
For the reasons stated, this court finds that Mr. Jackson's § 2254 petition for a writ of habeas corpus is untimely under the provisions set forth in 28 U.S.C. § 2244(d)(1). The petition is hereby dismissed, and a certificate of appealability is denied. The Clerk of the Court is to mark the case closed.
SO ORDERED.
Dated: Brooklyn, New York November 13, 2000