DeJesus v. Perez

Filing 23

OPINION AND ORDER: My prior Order denying petitioner's application for a stay was not based on any mistake of fact, and there is no reason to reconsider it. Accordingly, petitioner's motion for reconsideration of Order dated November 9, 2016 is denied in all respects. (Signed by Magistrate Judge Henry B. Pitman on 5/15/2017) Copies Mailed By Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
JOSHUE DEJESUS,
Petitioner,

16 Civ. 2552

-against-

(LTS) (HBP)

OPINION
AND ORDER

ADA PEREZ,
Respondent.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I.

Introduction

In an Opinion and Order dated November 9, 2016 (Docket
Item ("D.I.") 17), I denied petitioner's application to stay
consideration of his habeas petition while he exhausted unexhausted claims in state court.

On or about January 24, 2017

petitioner filed a document entitled "Reply to Opinion and Order
for Stay Consideration,"

(D.I. 19), in which petitioner seeks

reconsideration of my November 9 Opinion and Order.
As a motion for reconsideration, the motion is procedurally defective.

Local Civil Rule Civil Rule 6.3 requires that

motions for reconsideration be made within 14 days of the Order
of which reconsideration is sought.
than two months out of time.

Petitioner's motion is more

Second, petitioner submits factual

material in support of his application that was not previously
submitted in support of his original application.
is also precluded by Local Civil Rule 6.3.

This practice

See generally Allied

Irish Bank, P.L.C. v. Citibank, N.A., 03 Civ. 3748 (DAB), 2015 WL
10792025 at *1 n.3

(S.D.N.Y. Aug. 24, 2015)

(Batts, D.J.).

Nevertheless, given petitioner's pro se status, the length of the
sentence he is serving (20 years to life) and the lack of prejudice to respondent, I shall consider the merits of the application in the interests of justice.
In September 2009, petitioner was convicted of murder
in the second degree following a jury trial in Supreme Court, New
York County (Affirmation in Opposition to Petitioner's Motion to
Stay Petition, dated June 14, 2016 (D.I. 13)
2).

("Resp. 's Aff. ")

~

Petitioner, assisted by counsel, appealed his conviction to

the Appellate Division of the Supreme Court, First Department
(Resp. 's Aff.

~

3).

Among other things, petitioner argued on

appeal that his rights under the Confrontation Clause of the
Sixth Amendment had been violated by the admission of testimony
suggesting that law enforcement had information that petitioner
was guilty of the murder even before the sole eyewitness to
testify at trial, Lenny Carrasco, had identified him to the
police (Resp. 's Aff.

~

3).

Petitioner also claimed that his

rights under the Confrontation Clause were violated by the
2

admission of testimony that Yanic Boras, or Johnny Bora, who did
not testify at trial, conveyed "firsthand knowledge of who shot"
the victim to the police (Resp. 's Aff.

~

3 (internal quotation

marks omitted)).
In a decision dated April 9, 2013, the Appellate
Division rejected petitioner's claims.

People v. DeJesus, 105

A.D.3d 476, 963 N.Y.S.2d 91 (1st Dep't 2013).

In pertinent part,

the court found that the evidence concerning when petitioner
became a suspect was offered for legitimate, nonhearsay purposes.
People v. DeJesus, supra, 105 A.D.3d at 476, 963 N.Y.S.2d at 9293.

Moreover, the testimony about Boras' statement to the police

was not specific and, therefore, did not create a risk that the
jury would infer that Boras' statement inculpated petitioner.
People v. DeJesus, supra, 105 A.D.3d at 477, 963 N.Y.S.2d at 93.
Petitioner's appellate counsel successfully sought
leave to appeal to the New York Court of Appeals (Resp. 's Aff.
4).

~

Petitioner's application to the New York Court of Appeals

stated:
I enclose copies of the briefs filed in the Appellate Division, including the pro se supplemental brief,
and that Court's order. Appellant requests this Court
to consider and review all issues outlined in the
briefs for defendant-appellant's brief, including the
pro se supplemental brief.

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(Petitioner's Reply to Opinion and Order for Stay Consideration,
sworn to Jan. 19, 2017 (D.I. 19), Ex. A at 1).

Petitioner

appears to be arguing that the foregoing statement in the application for leave to appeal, in conjunction with the Court's
granting of leave to appeal, undercuts respondent's representation that petitioner's counsel did not raise any claim in the
Court of Appeals concerning the testimony about Boras' statement
to the police (Resp. 's Aff.

~

4).

Petitioner is mistaken.

Although petitioner's counsel

sought to raise in the Court of Appeals all the claims that had
previously been raised in the Appellate Division, he did not
actually do so.

I have reviewed petitioner's brief to the New

York Court of Appeals, and it does not raise any issue concerning
the testimony regarding Boras' statement.

Thus, my prior Order

denying petitioner's application for a stay was not based on any
mistake of fact, and there is no reason to reconsider it.
Accordingly, petitioner's motion for reconsideration of
Order dated November 9, 2016 is denied in all respects.
Dated:

New York, New York
May 15, 2017
SO ORDERED

United States Magistrate Judge
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Copies mailed/transmitted to:
Mr. Joshue DeJesus
DIN 09A4840
121 Red Schoolhouse Road
P.O. Box F
Fishkill, New York 12524
Alice A. Wiseman, Esq.
Assistant District Attorney
New York County
1 Hogan Place
New York, New York 10013

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