Trumpet v. Smith

Filing 10

ORDER *** For the reasons set out in the attached memorandum, I deny the petition for a writ of habeas corpus and decline to issue a certificate of appealability. Ordered by Judge Edward R. Korman on 2/20/2015. (Diaconis, Ari)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

DAVID TRUMPET,
Petitioner,
MEMORANDUM & ORDER
– against –
JOSEPH T. SMITH,

14-CV-4231 (ERK)
Respondent.

KORMAN, J.:
Petitioner David Trumpet pleaded guilty to two counts of predatory sexual assault; one
count of robbery in the third degree; two counts of criminal sexual act in the first degree; six
counts of sexual abuse in the first degree; and one count each of assault in the second degree,
assault in the third degree, criminal possession of a weapon in the fourth degree, and criminal
possession of stolen property in the fifth degree. Pet. for Habeas at Page ID #1. On March 4,
2009, a Kings County trial judge sentenced petitioner to ten years to life. Id. After pursuing
various state court post-conviction proceedings, petitioner filed the instant petition for a writ of
habeas corpus on June 26, 2014. Id. Petitioner asserts three grounds for relief: denial of right to
appeal; ineffective assistance of counsel; and involuntary guilty plea. Id.
The petition is time-barred.

Indeed, because petitioner did not directly appeal his

conviction or sentence within the time permitted for such review, he had only one year and thirty
days from March 4, 2009, in which to file a petition for a writ of habeas corpus—i.e., by April 3,
2010. See 28 U.S.C. § 2244(d)(1)(A). Yet petitioner did not file until June 26, 2014. Pet. for
Habeas at Page ID #6. Moreover, tolling does not apply, as petitioner did not begin state court
post-conviction proceedings until February 26, 2011. See Aff. of Ass’t Dis’t Att’y Terrence F.

Heller, Sept. 3, 2014, ECF No. 5, at ¶ 9. Lastly, petitioner does not assert actual innocence or
submit any ground upon which an exception to time-bar might apply. See generally Pet.’s Reply
Mem. Supp. Pet. for Habeas. Nor does petitioner’s reply brief respond to the motion to dismiss
on the ground that the petition is untimely. Id.
The petition for a writ of habeas corpus is dismissed and I decline to issue a certificate of
appealability.

SO ORDERED.
Brooklyn, New York
February 20, 2015

___________________
Edward R. Korman
Senior United States District Judge

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