O'Donnell v. People

1

JAMES O'DONNELL, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.

No. 18cv06414 (ER) (DF)

United States District Court, S.D. New York

May 25, 2023

REPORT AND RECOMMENDATION

DEBRA FREEMAN United States Magistrate Judge.

Proceeding pro se, petitioner James O'Donnell (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction by a jury of three counts of Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03 of the New York Penal Law, three counts of Criminal Possession of a Weapon in the Third Degree, in violation of Section 265.02 of the New York Penal Law, and eight counts of Criminal Possession of a Weapon in the Fourth Degree, in violation of Section 265.01 of the New York Penal Law. For these crimes Petitioner was sentenced to an aggregate prison term of 15 years to be followed by five years of post-release supervision. At the time he filed his habeas petition Petitioner was incarcerated at the Cape Vincent Correctional Facility in Cape Vincent, New York (see Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, dated July 5, 2018 (“Petition” or “Pet.”) (Dkt. 1)) although he failed to name the warden of that facility as Respondent, naming instead the People of the State of New York (see id.).^[1] Currently, Petitioner is incarcerated at the Mohawk Correctional Facility in Rome, New York. (See Dkt. 26.)

In his Petition, Petitioner asserts four grounds for habeas relief although the fourth ground is actually comprised of several separate claims. First, Petitioner alleges that his sentencing papers incorrectly state that a plea had been entered and accepted when, in fact, he had pleaded “not guilty.” (Pet. ¶ 12 (Ground One).) Second, he alleges that he received ineffective assistance of trial counsel. (Id. (Ground Two).) Third, he alleges that the District Attorney's Office did not submit a brief in opposition to the motion Petitioner filed pursuant to Section 440.10 of the New York Criminal Procedure Law, and that this “violated [his] rights to rebuttal.” (Id. (Ground Three).) And, finally, he alleges that there was no probable cause to stop, question, or search him; that his Miranda rights were violated; that members of the jury discussed the case during an adjournment and there should have been a mistrial as a result; and that he was “unjustly given a[] lengthy maximum sentence.” (Id. (Ground Four).) In opposition, Respondent argues that the Petition is time-barred, but that all of Petitioner's claims would nevertheless fail on the merits. (See generally Respondent's Memorandum of Law in Opposition to The Petition for a Writ of Habeas Corpus, dated Jan. 4, 2019 (“Resp. Mem.”) (Dkt. 18-1).)

As discussed below, Respondent's contention that the Petition is untimely is persuasive, as Petitioner has failed to show that his claims were made within the applicable limitations period or that, as a matter of equity, the statute of limitations should be tolled or not enforced in this case. Accordingly, I recommend that the Petition be dismissed in its entirety, without need for the Court to reach the merits of Petitioner's claims.

BACKGROUND

A. Factual Background

The background facts, as briefly summarized herein, are taken from evidence presented at Petitioner's trial, which was conducted from April 17 to April 24, 2012.^[2]

According to the testimony of New York City Police Officer Edward Thompson (“Thompson”), he and his partner, Officer John Sivori (“Sivori”), were on duty in the Greenwich Village area of Manhattan in the early morning of March 16, 2010. (Trial Tr., Dkt. 19-1, at ECF 68-69.) As there had been a lot of burglaries in the area, the officers were on patrol in an unmarked vehicle car, “try[ing] to stop people from breaking into buildings,” and “looking for any suspicious activity.” (Id., at ECF 69.) Thompson testified that, at approximately 2:00 a.m., he noticed Petitioner “trying to gain access into a construction site” at 814 Broadway (id., at ECF 72 (explaining that “it looked like [Petitioner] was trying to pick the lock”)). Thompson further testified that, as soon as he observed Petitioner start to walk away from the site (which Petitioner did after looking in the direction of a security guard) (id., at ECF 74), Thompson got out of the police car and started following Petitioner on foot. (Id., at ECF 75). After walking for about two blocks, Thompson saw Petitioner go into a deli on University Place. (Id., at ECF 74-75.)

Thompson's account of Petitioner's arrest was as follows: Thompson and Sivori (who separately drove to the location of the deli) stopped Petitioner when he exited the deli. (Id., at ECF 76.) They identified themselves to Petitioner as police officers (id., at ECF 77), and Thompson asked Petitioner what he was doing, and why he was “walking [] aimlessly around” (id., at ECF 77). Although Thompson had witnessed Petitioner trying to get into a building by breaking a lock, Petitioner responded to Thompson's question by stating that he was “down there just to get a cup of coffee.” (Id.) Thompson thought this response was unusual both because, when he asked Petitioner where he lived, Petitioner responded that he lived uptown (see id., at ECF 78 (Thompson testifying, “I don't remember the exact street - it was . . . a hundred and something street[, and] we were on the corner of East 8th Street and University. So that, right there, raised a red flag when he was telling me he was there for coffee because there's [], you know, hundreds of delis - especially up by where he lives”)), and because Thompson noticed that Petitioner had tea, rather than coffee, in his hand (id.; see also id., at ECF 163 (Sivori similarly testifying that Petitioner had “a cup of tea in his hand” and that the officers “thought it was odd [that] he said he had come down for coffee and had a cup of tea . . .”).)

Petitioner then reportedly told the officers that he had been in the military, and Sivori asked if Petitioner had any weapons on him. (Id., at ECF 78-79; see also id., at ECF 163.) Petitioner responded that he had a knife on him and indicated that it was on his right side. (Id., at ECF 79.) Thompson and Sivori then proceeded to search Petitioner, finding four daggers in a sheath on the right side of Petitioner's belt, as well as a loaded gun in his front waistband and four more daggers in another sheath on his left side. (Id., at ECF 79-80; see also id., at ECF 164-65 (Sivori testifying that the “daggers” recovered from Petitioner had “double-sided blades,” and that the gun recovered from Petitioner's waistband was a “.22 caliber semi-automatic firearm” that was loaded with “9 rounds in a magazine that was inserted into the weapon”).) According to Sivori's testimony, Thompson also recovered another magazine from Petitioner's pants. (Id., at ECF 165-66.) In addition, the police recovered a silencer and a laptop from Petitioner's backpack. (Id., at ECF 81, 165.)

After the weapons were recovered from Petitioner, he was placed under arrest, and other police officers, who had responded to the scene, transported him to the Ninth Precinct. (See id., at ECF 86, 231-36.) Subsequent to Petitioner's arrest, the police executed a search warrant for a storage-facility unit associated with Petitioner and recovered additional weapons and weapon accessories from that location. (See generally id., at ECF 167-208; see also Background, infra, at Section B(1)(a) (summarizing evidence addressed at suppression hearing).)

B. Procedural History

1. Proceedings Before The Trial Court

a. Suppression Hearing

A Huntley/Mapp hearing^[3] was conducted on March 12-13, 2012 by the Honorable Lewis Bart Stone, J.S.C. (See Pretrial Tr.) Officers Thompson and Sivori testified at the hearing, and gave the following account of what occurred following Petitioner's arrest and transport to the police station:

At approximately 5:00 a.m. on March 16, 2010, at the Ninth Precinct, Thompson issued Miranda warnings to Petitioner, both verbally and in writing. (Pretrial Tr., at 85-86.) Petitioner indicated that he did not want to give a statement, but he also did not ask for an attorney at that time. (Id., at 86; see also SR 66.^[4])

At approximately 10:30 a.m., Detective Brian Stamm (“Stamm”), of the Intelligence Division, arrived at the precinct to conduct a “threat assessment” of Petitioner regarding “documentation recovered from [his] backpack that was negative toward [] the mayor.” (Pretrial Tr., at 17, 123-25 (Stamm testifying, “I questioned him concerning his arrest in order to make an assessment on whether he was dangerous to the mayor”).) Before questioning Petitioner, Stamm did not re-issue Miranda warnings, and, this time, Petitioner proceeded to make “a lot of statements . . . regarding his past, his history, and what brought him to New York.” (Id., at 125.) Petitioner also told Stamm that he had additional weapons in a storage facility, and signed a form giving his consent to search the facility. (Id., at 126.)

At approximately 3:00 p.m., police officers, once again, issued Miranda warnings to Petitioner, and Petitioner then gave both a verbal and a written statement. (Id., at 129-30; see also SR 67-69.) Petitioner again told the officers that he had additional weapons in a storage facility. (Pretrial Tr., at 88.)

At approximately 11:57 p.m., Petitioner was transported to the District Attorney's Office for another interview. (Id., at 21.) Miranda warnings were administered there, and Petitioner made a statement on video. (Id., at 23-26, 72-73.)

On March 17, 2010, Police officers searched Petitioner's storage unit and recovered a black Glock .9 mm pistol, a black Glock magazine, 320 cartridges, two silencers,...