Hernandez v. Phillips, et al, No. 1:2002cv09098 - Document 34 (S.D.N.Y. 2009)

Court Description: MEMORANDUM OPINION AND ORDER: #97861 Petitioner's Request for additional time to brief his Apprendi claim is therefore denied. (Signed by Judge Robert W. Sweet on 8/5/2009) (jfe) Modified on 8/11/2009 (jab).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUAN HERNANDEZ, Petitioner, 02 Civ. 9098 (RWS) -against- MEMORANDUM OPINION - WILLIAM D. BROWN, Superintendent, Greenhaven Correctional Facility, and ANDREW CUOMO, New York State Attorney General, AND ORDER - Respondent. .................................. X CLEc;p,~~ICAIIH FiLE3 Sweet, D . J . By letter of June 20, 2009, Petitioner Juan Hernandez ("Hernandez" or "Petitioner") has requested an extension of time to brief his clalm for Constitutional violations pursuant to Apprendl v. New Jersey, 530 U.S. 466 (20001, arislng out of the state court's imposition of consecutive sentences. his request is denied. Prior Proceedings For the reasons set forth below, Following a jury trial in New York State Supreme Court, New York County, Petitioner was convicted cf two counts of attempted murder in the second degree, and two counts of criminal use of a firearm in the first degree. On June 16, 1994, the court sentenced Petitioner to two concurrent terms of imprisonment of 12 % to 25 years for one count of attempted murder in the second degree and one co~:nt of criminal use of a weapon in the firs^ degree, to run consecutively to two concurrent terms of 9 to 18 years for the other counts cf attempted murder in the second degree and criminal use of a firearm in the first degree. He remains incarcerated pursuant to this judgnent. On November 14, 2002, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. 5 2254 with this Court, asserting violations of his federal constitutional rights arising out of the ineffective assistance of counsel, due process violations, and thc leg31 insufficiency of the evidence presented at trial to support a guilty verdict. On March 24, 2005, the habeas petition was placed on the suspense docket at Petitioner's request to permit Hernandez to appeal his sentence before the trial court

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