Opinion
99 Civ. 9966 (MBM).
January 9, 2002
DARRYL SMITH, Pro Se, 90-A-7946, Green Haven Correctional Facility, Stormville, NY., Pro Se for Petitioner.
ROBERT M. MORGENTHAU, ESQ., District Attorney, New York County, MORRIE I. KLEINBART, ESQ., Assistant District Attorney, New York, Attorney[s] for Respondent.
OPINION AND ORDER
Darryl Smith petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. V 1999), challenging his New York state court conviction for murder and attempted murder in the second degree. In a Report and Recommendation dated March 13, 2001 (the "Report"), Magistrate Judge Theodore Katz recommended that the petition be dismissed as time-barred. Because Smith has made a blanket objection to the Report, the entire Report must be reviewed de novo. See 28 U.S.C. § 636(b)(1) (1994); Fed.R.Civ. p. 72(b). Upon such review, I determine that Smith's petition should be denied as time-barred for precisely the reasons stated by the Magistrate Judge. Accordingly, the Report is adopted and Smith's petition is dismissed.
I.
The relevant facts are set forth in detail in the Report and are summarized only briefly as follows. Smith was charged with the June 23, 1989 murder of a male prostitute and the attempted robbery and attempted murder of a second male prostitute one month later. After a jury trial that began April 27, 1990 in Supreme Court, New York County, Smith was convicted of second degree murder and second degree attempted murder and was sentenced on June 6, 1990 to consecutive terms of 25 years to life, and 8 1/3 years to 25 years, respectively. On March 16, 1993, a unanimous panel of the Appellate Division, First Department, affirmed the conviction, noting "the overwhelming evidence of defendant's guilt."People v. Smith, 191 A.D.2d 284, 284, 595 N.Y.S.2d 685, 685 (1st Dep't 1993). The Court of Appeals denied leave to appeal on May 26, 1993.People v. Smith, 81 N.Y.2d 1020, 600 N.Y.S.2d 208 (1993).
Smith has since made five different motions for post-conviction relief. On September 1, 1993, he filed a civil rights complaint in this court under 42 U.S.C. § 1983 (1994). The complaint was dismissed by Judge Charles L. Brieant on December 10, 1993. Smith v. Morgenthau, No. 93 Civ. 8493 (S.D.N.Y. Dec. 10, 1993). Smith did not appeal.
On April 15, 1997, Smith moved in Supreme Court, New York County to vacate the judgment of his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 (McKinney 1994). That Court summarily denied the motion on May 7, 1997. (Smith Affirm. of 10/4/99 Ex. 3) On July 17, 1997, the Appellate Division, First Department denied leave to appeal. (Id. Ex. 4) Petitioner's attempt to appeal this order to the Court of Appeals was denied on September 18, 1997. (Id. Ex. 5) His motion to reconsider was also denied on December 15, 1997. (Id. Ex. 6)
On January 5, 1998, Smith petitioned for a writ of habeas corpus in the New York Supreme Court, Dutchess County. The petition was denied on April 2, 1998. (Id. Ex. 7) The Appellate Division, Second Department, declined to grant leave to appeal on June 18, 1998. (Id. Ex. 8)
On April 9, 1998, Smith filed a second petition for a writ of habeas corpus in Supreme Court, New York County. That petition was denied on June 4, 1998. The Appellate Division, First Department, declined to grant leave to appeal on October 8, 1998. (Id. Ex. 9). The Court of Appeals also denied leave to appeal on January 12, 1999. (Id. Ex. 10)
Finally, on May 20, 1999, Smith filed the present petition for a writ of habeas corpus in this court. The petition was assigned to Magistrate Judge Katz for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) (1994), and Rule 72.1(d) of the Southern District of New York Local Civil Rules. The Magistrate Judge has recommended that the petition be dismissed as time-barred.
In Smith's objection to the Report, he argues that the Magistrate Judge "completely `overlooked' all the issues raised" in petitioner's memorandum of law, particularly his Suspension Clause arguments. (Smith Opp'n of 3/19/01 at 2-3) Because Magistrate Judge Katz adequately addressed and correctly rejected each of Smith's arguments, the Report is adopted and Smith's petition is dismissed as time-barred.
II.
Magistrate Judge Katz did not "overlook" Smith's first argument — that his present habeas petition is not time-barred by the one-year time limitation under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Smith Mem. at 2-3) To the contrary, the Magistrate Judge addressed the issue in great detail, concluding on the basis of settled precedent that Smith's petition is, in fact, untimely. Magistrate Judge Katz explained that the Second Circuit in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), established a one-year "grace period" starting on April 24, 1996 so that prisoners whose convictions became final before the enactment of the AEDPA could file a timely habeas petition. Id. at 102-03. (Report at 6) The Magistrate Judge also noted that the grace period is tolled during the time in which "a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2) (1994 Supp. V 1999); see Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999) (applying the AEDPA tolling provision to the Ross "grace period"), aff'd on other grounds, 531 U.S. 4 (2000). (Report at 7) Even assuming that all of Smith's motions for post-conviction relief were properly filed so as to toll the grace period for their duration, the Magistrate Judge calculated that the one-year grace period had nonetheless expired before Smith's present May 20, 1999 application. (Report at 8-10) The Report provides a detailed account of the relevant facts and legal precedents that compel this conclusion, all of which are correctly stated and therefore unnecessary to revisit.
In addition, the Magistrate Judge properly addressed and dispensed with Smith's second argument — that the AEDPA one-year time limitation, as applied to his case, constitutes an unconstitutional violation of the Suspension Clause. (Smith Mem. at 4-9) In rejecting the argument, the Magistrate Judge cited two Second Circuit cases squarely holding that the one-year limitation period imposed by AEDPA is not a violation of the Suspension Clause because it preserves "some reasonable opportunity to have . . . claims heard on the merits." Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d. Cir.), cert. denied, 531 U.S. 873 (2000); Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'g opinion below, 990 F. Supp. 275 (S.D.N.Y. 1998). (Report at 11) Both cases that the Magistrate Judge cited, like Smith's, involved first-time federal habeas petitions.
Although Smith does not so indicate, the Suspension Clause arguments in his memorandum are taken verbatim from Judge Sweet's opinion in Rosa v. Senkowski, No. 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), aff'd on other grounds, 148 F.3d 134 (2d Cir. 1998), which held that the application of AEDPA's time limits to that petitioner's first federal habeas petition constituted an unconstitutional suspension. Id. at *7 (Smith Mem. at 4-10) However, this authority is unpersuasive because its reasoning, as regards the constitutionality of the one-year "grace period" at issue in this case, has been expressly disavowed by the Second Circuit. See Rodriguez, 161 F.3d at 764, aff'g opinion below, 990 F. Supp. at 277-78, 283-84; see also Lucidore, 209 F.3d at 113.
The Magistrate Judge also noted that although the Second Circuit has held open the possibility that the one-year limitation might be an unconstitutional suspension as applied to a prisoner who is "actually innocent," see Lucidore, 209 F.3d at 113-14, Smith had not made such a showing in this case. (Report at 11-14) The Magistrate Judge set forth the correct legal standard for determining "actual innocence," see Schlup v. Delo, 513 U.S. 298, 327-28 (1995), and correctly determined that Smith did not meet that standard, given the nature of his habeas claims and the strong evidence of his guilt presented at trial. (Report at 12-14) Because the Report thoroughly and properly addressed Smith's Suspension Clause claims, no further exegesis is warranted.
Smith's petition is dismissed as time-barred for the reasons set forth in Magistrate Judge Katz's Report. Furthermore, because Smith's petition raises legal questions that are well settled in this Circuit, a certificate of appealability will not issue.
SO ORDERED