Samo v. Keyser

305 F. Supp. 3d 551
CourtDistrict Court, S.D. Illinois
DecidedApril 25, 2018
Docket17 Civ. 5043 (RJS) (GWG)
StatusPublished
Cited by9 cases

This text of 305 F. Supp. 3d 551 (Samo v. Keyser) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samo v. Keyser, 305 F. Supp. 3d 551 (S.D. Ill. 2018).

Opinion

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Petitioner Virgilio Samo, currently an inmate at Sullivan Correctional Facility in Fallsburg, New York, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed July 28, 2017 (Docket # 3) ("Pet."). The respondent, the superintendent at the Sullivan Correctional Facility, has moved to dismiss the petition as barred by the applicable statute of limitations.1 For the reasons stated below, the respondent's motion should be granted.

I. BACKGROUND

A. Samo's Trial and Appeal

Samo was convicted of second-degree murder on July 1, 2008, after a jury trial in the Supreme Court of the State of New York, Bronx County. Chamoy Decl. ¶ 10. Samo was sentenced to an indeterminate prison term of from twenty-five years to life in prison. Pet. at *1;2 Chamoy Decl. ¶ 12.

Represented by appointed counsel, Dawn M. Cardi, Samo appealed his conviction to the Appellate Division, First Department, of the Supreme Court of the State of New York. See People v. Samo, 124 A.D.3d 412, 1 N.Y.S.3d 45 (1st Dep't 2015) ; Brief for Defendant-Appellant, dated Dec. 3, 2012 (annexed as Ex. 2 to Chamoy Decl.) ("App. Brief"). The brief submitted by Cardi sought to overturn the verdict on nine grounds. App. Brief at 37-56. The First Department affirmed Samo's conviction and sentence. Its opinion reasoned as follows:

*554The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's credibility determinations, including its resolution of any inconsistencies in testimony. Although the People's main witness was an accomplice in the crime, there was extensive evidence provided by nonaccomplice witnesses.
The court articulated a reasonable basis for the exercise of its discretion to have [petitioner] restrained during trial, and the restraint was justified by an essential state interest in courtroom security, specific to this defendant. The court based its decision on [petitioner's] threatening statements and actions only a few weeks earlier at a trial that had resulted in a mistrial. [Petitioner's] threatening behavior was serious, particularly when viewed in the context of belligerent and intimidating conduct by jointly tried codefendants, as well as courtroom spectators. The court minimized any prejudice by taking steps to prevent the jury from seeing [petitioner's] restraints, and by way of an instruction to the jury that defense counsel had requested.
The court properly denied [petitioner's] motion to preclude testimony regarding admissions he made to a fellow inmate while incarcerated on this case, and there was no violation of [petitioner's] right to counsel. The record supports the court's finding that the witness was not an agent of the government with regard to the prosecution of this defendant. Moreover, [petitioner] initiated the conversation and volunteered his statements.
The court properly denied, as untimely, [petitioner's] motion to suppress physical evidence recovered as the result of a search warrant. [Petitioner] had all the information necessary to make a motion to controvert the warrant much earlier in the proceedings. In any event, there was no prejudice because the objects recovered under the warrant added little or nothing to the People's case.
We find that [petitioner] received effective assistance of counsel under the state and federal standards.
[Petitioner] did not preserve his challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. We perceive no basis for reducing the sentence.

Samo, 124 A.D.3d at 412-13, 1 N.Y.S.3d 45 (citations omitted).

B. Application for Leave to Appeal

Following the Appellate Division ruling, Cardi submitted a letter to the New York Court of Appeals dated February 17, 2015, seeking leave to appeal. See Letter from Dawn M. Cardi to Andew W. Klein, dated Feb. 17, 2015 (annexed as Ex. 5 to Chamoy Decl.). On August 26, 2015, Associate Judge Abdus-Salaam of the New York Court of Appeals signed an order denying Samo's application for leave to appeal. See People v. Samo, 26 N.Y.3d 934, 17 N.Y.S.3d 97, 38 N.E.3d 843 (2015).

Samo contends that Cardi never sent him or told him about the order of the New York Court of Appeals denying his application for leave to appeal. See Letter from Virgilio Samo, dated June 26, 2017 (Docket # 1) ("Samo Letter"), at 1; Pet'r Mem. at 2-3. On March 22, 2017, more than two years after his application had been filed, an "S.D.U. inmate law clerk" wrote a letter to the Court of Appeals on Samo's behalf that apparently inquired into the status of Samo's application for leave to appeal. See Samo Letter at 2-3. A week later, on March 29, 2017, the Court of Appeals sent a letter to Samo informing him that his application for leave to appeal *555had been denied on August 26, 2015. See Letter from Margaret N. Wood to Virgilio Samo, dated Mar. 29, 2017 (attached as Ex. A to Samo Letter) ("Wood Letter"). Samo does not state on what date he received this letter.

C. The Instant Petition

On June 26, 2017, Samo submitted the first filing in this case, which was a letter addressed to the Clerk of the Court that "request[ed] an extension with regard to filing [his] Federal Habeas Corpus Motion until September 28, 2017." See Samo Letter at 1. This letter was docketed as a petition for writ of habeas corpus, even though the letter did not set forth any claims. Id.

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Bluebook (online)
305 F. Supp. 3d 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samo-v-keyser-ilsd-2018.