Summary
noting that “a petition may be dismissed if it contains only vague or conclusory allegations”
Summary of this case from Dearstyne v. MazzucaOpinion
01 Civ. 3985 (RWS)
November 15, 2001
JAMES BANKS, Mt. McGregor Correctional Facility, Wilton, NY, Petitioner Pro Se.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, New York, NY, By: STEVEN N. SCHULMAN, ESQ., Assistant Attorney General, Of Counsel, Attorney for Respondent.
OPINION
The defendant New York State Department of Correctional Services (the "State") has moved pursuant to 28 U.S.C. § 2242, Rules 12(b)6 and 12(e), Fed.R.Civ.P., and Rules 2(c) and 4 of the Rules Governing 2254 cases to dismiss the habeas petition of James Banks ("Banks"). For the reasons set forth below, the motion is granted with leave granted to Banks to file an amended petition within forty-five days.
Prior Proceedings
Banks filed his petition for a writ of habeas corpus on May 10, 2001, the State moved to dismiss on July 2, 2001, and the motion was calendared for July 25, 2001. No opposition has been received from Banks.
The Petition
On March 25, 1998, following a jury trial in the Supreme Court of the State of New York for New York County, Banks was convicted of criminal sale of a controlled substance in the third degree and sentenced to four and one-half to nine years imprisonment. Banks did not testify at trial. He appealed, and on June 20, 2000, the Appellate Division of the Supreme Court, First Department, affirmed the judgment below. Banks alleges that the grounds raised on appeal included "[s]uppression of evidence, contamination of information that was disclosed to jurors." According to the Appellate Division's published decision, the sole issue addressed on appeal was whether the jury's verdict rejecting Bank's agency defense was supported by the evidence. People v. Banks, 273 A.D.2d 129, 129, 711 N.Y.S.2d 716, 716 (1st Dept. June 20, 2000). On October 26, 2000, Judge Levine of the New York Court of Appeals denied leave for further appeal. People v. Banks, 95 N.Y.2d 904, 716 N.Y.S.2d 644 (2000).
The petition alleges two grounds for relief. Banks' first ground is called "Suppres[s]ion of evidence" and Banks alleges as factual support that "there is no physical evidence that could be introduced into the court proceedings." As a second ground, Banks alleges that evidence of two prior convictions for drug sale or possession was introduced at trial, prejudicing the jury.
The Petition Fails to Allege a Claim
In examining a pleading, the Court may not only consider the face of the complaint, but may also consider documents outside the complaint which are integral to the pleader's claim, at least so long as the pleader has notice of the information in them. Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000). Here, the Court may consider the published appellate decisions of the state courts of New York because Banks' allegation that he exhausted available remedies depends on them. See People v. Banks, 273 A.D.2d 129, 711 N.Y.S.2d 716 (1st Dept. 2000), leave for appeal denied, 95 N.Y.2d 904, 716 N.Y.S.2d 644 (2000 (Levine, J.).
Pro se habeas corpus petitions must be given a liberal construction. Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983). A petition should not be summarily dismissed when it is non-frivolous, that is, "when there is any constitutional claim that, given the facts summarized in the petition, is arguable on its merits." Cuadra v. Sullivan, 837 F.2d 56, 58 (2d Cir. 1988) (emphasis added).
However, specific facts must be alleged. Under 28 U.S.C. § 2242, an application for a writ of habeas corpus "shall allege the facts concerning the applicant's commitment or detention . . ." The petitioner must "specify" all grounds for relief and "shall set forth in summary form the facts supporting each of the grounds thus specified." Habeas Rule 2(c). "[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'" Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (citing Advisory Committee Note to Habeas Rule 4). Thus, a petition may be dismissed if it contains only vague or conclusory allegations. See Blackledge, 431 U.S. at 75.
As the Supreme Court summarized,
Habeas corpus petitions must meet heightened pleading requirements, see 28 U.S.C. § 2254 Rule 2(c) and comply with this Court's doctrines of procedural default and waiver, see Coleman v. Thompson, 501 U.S. 722 (1991). Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face, see 28 U.S.C. § 2254 Rule 4, and to deny a stay of execution where a habeas petition fails to raise a substantial federal claim, see Barefoot v. Estelle, 463 U.S. 880, 894 (1983).
McFarland v. Scott, 512 U.S. 849, 856 (1994). Banks has not satisfied the heightened pleading requirement here.
Failure to raise a particular issue in a state appeal sets a procedural bar against raising that issue in a federal habeas petition which cannot be lifted in the absence of a showing of both cause for failing to raise the issue and prejudice in setting the procedural bar. Murray v. Carrier, 477 U.S. 478, 492, 494 (1986). See Strogov v. Attorney General, 191 F.3d 188, 193 (2d Cir. 1999) (procedural bar exists after failure to raise issue in application to New York Court of Appeals or on direct review). In the ordinary case, and no facts alleged by Banks suggests this is anything else, cause which justified the failure to raise the issue must be alleged. See Murray, 477 U.S. at 489, 497. Although he alleges that he raised a suppression issue, as well as the issue regarding the convictions, on appeal these allegations are contradicted by the Appellate Court's decision which addressed no such issues.
Liberal construction of a petition does not require the Court, or respondent, to speculate as to the issues raised. "[H]abeas corpus is a special proceeding to right wrongs, not a routine procedure to search for them . . ." Williams, 722 F.2d at 1051 (citation omitted).
Banks' Claim is Procedurally Barred
Banks also alleges that evidence of two prior convictions were improperly admitted into evidence against him. However, Banks does not challenge the validity of the convictions and he affirmatively alleges that he did not testify, so it is not apparent when this evidence was presented to the jury. See Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991) (ruling that prior conviction evidence may be admitted on cross-examination is not subject to federal scrutiny if petitioner did not testify). See also People v. Sandovol, 34 N.Y.2d 371, 357 (N.Y.S. 849 (1974) (providing for pretrial hearing on admissibility of prior crime evidence for cross-examination). Moreover, the admission of prior convictions is an evidentiary ruling which is not reviewable in the absence of prejudice constituting fundamental unfairness, something that Banks bears a heavy burden of showing. Warren v. Miller, 78 F. Supp.2d 120, 135 (E.D.N.Y. 2000). Banks again alleges nothing to suggest that this is an extraordinary case.
The Appellate Division's decision makes no mention of an issue of prior convictions. Banks, 273 A.D.2d at 129, 273 N.Y.S.2d at 716. Again, the petition fails to explain why the issue was not addressed by the state appellate courts. Thus, there is nothing in the petition to suggest that this issue is not procedurally barred.
The Petition Fails to Name the Proper Respondent
The respondent named by Banks is the Department of Correctional Services. However, "[o]ne held in custody must also bring his petition against the proper official." United States ex rel. Rudick v. Laird, 412 F.2d 16, 21 (2d Cir. 1969) (emphasis added). Under 28 U.S.C. § 2242, Banks must name as respondent "the person who had custody over him . . ." (emphasis added). See also Habeas Rule 2(a). The Department is not a proper respondent. Williams v. Missouri Dept. of Corrections, 463 F.2d 993, 996 (8th Cir. 1972). Banks should have named the superintendent of his correctional facility.
A More Specific Claim Will Be Permitted
For the reasons stated above, the petition "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading . . . ." Id. Amendments and supplements under the rules of civil procedure are expressly permitted by 28 U.S.C. § 2242 and the Advisory Committee's Notes on Habeas Rule 4 expressly contemplate motions to make the petition more certain and leave is granted to serve an amended petition within forty-five days.
Conclusion
The petition is dismissed with leave granted to file an amended petition within forty-five (45) days.
It is so ordered.