Opinion
21-CV-3690 (LTS)
05-17-2021
NIGEL FREDRICKS, Petitioner, v. MICHELL HALLETT, Respondent.
ORDER TO AMEND :
Petitioner, who is currently detained in the Anna M. Kross Center, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner appears to challenge his pending criminal proceedings in the Supreme Court of the State of New York, New York County.
By order dated April 27, 2021, the Court granted Petitioner's request to proceed in forma pauperis (IFP). For the reasons set forth below, the Court grants Petitioner leave to file an amended petition within thirty days of the date of this order.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a § 2254 petition without ordering a responsive pleading from the state, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rules Governing § 2254 Cases, Rule 4; see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them "to raise the strongest arguments they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt "from compliance with relevant rules of procedural and substantive law." Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
Petitioner Nigel Fredricks brings this petition for a writ of habeas corpus under section 2254, but he does not specify the conviction that he challenges other than to say that it is an "assault case," in which defense counsel Kenneth Gilberth represents him. (ECF 1 at 1.) Petitioner also indicates that he has agreed to a bench trial. (Id. at 2.)
Petitioner has used both the name Fredricks and the name Fredericks. He is currently in the custody of the New York City Department of Correction under the name Fredricks. --------
On February 17, 2021, Petitioner filed a motion to dismiss the criminal charges against him for lack of personal jurisdiction, which the trial court denied on April 8, 2021. Petitioner contends that he is entitled to "automati[c] release for the simple fact [that the] case that [caused him to be] incarcerated was dismissed, [his parole warrant has] been revoke[d,] and [he has been] restore[d] to parole." (Id. at 4.) Petitioner currently has a petition or appeal pending in the state court. (Id. at 6.)
According to public records of the New York State Unified Court System, Petitioner was arrested on December 3, 2019, and charged with assault while in a correctional facility, People v. Fredricks, 03946-2019. A grand jury returned a true bill on December 31, 2019, and on January 9, 2020, Petitioner pleaded not guilty to the charges against him. He has not posted bond, and his next hearing before Judge Mennin is scheduled for June 14, 2021.
In Fredericks v. Doe, ECF 1:20-CV-11043, 1 (S.D.N.Y.), Petitioner brought a civil rights complaint, in which, among other things, he challenged the same criminal proceedings that he attacks in this action. Petitioner alleged in that matter that, while he was incarcerated in the Manhattan Detention Center, he "caught a new charge" for assaulting a correction officer. He appeared before Judge Mennin in Manhattan Criminal Court, and bail was set at $300,000. Petitioner asserted in the civil rights action that Judge Mennin lacked jurisdiction over his case. By order dated January 29, 2021, District Judge Louis L. Stanton dismissed Petitioner's claims against Judge Mennin based on judicial immunity and notified Petitioner that, before bringing a habeas petition challenging the constitutionality of his detention during his criminal proceedings, he must fully exhaust his state court remedies. Fredericks, ECF 1:20-CV-11043, 5 (Order to Amend filed January 29, 2021).
DISCUSSION
Petitioner styles this application as a petition for a writ of habeas corpus under section 2254, which is an application available to "a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(b)(1). But Petitioner challenges his pretrial detention on pending criminal charges for assaulting a correctional officer, People v. Fredricks, 03946-2019, and thus he does not challenge his custody pursuant to a state court judgment.
As Petitioner was notified when he raised the same challenge in Fredericks, ECF 1:20-CV-11043 a state pretrial detainee may be able to challenge the constitutionality of his detention in a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Robinson v. Sposato, No. 11-CV-0191, 2012 WL 1965631, at *2 (E.D.N.Y. May 29, 2012); see also Hoffler v. Bezio, 831 F. Supp. 2d 570, 575 (N.D.N.Y. 2011), aff'd on other grounds, 726 F.3d 144 (2d Cir. 2013); Marte v. Berkman, No. 11-CV-6082 (JFK), 2011 WL 4946708, at *5 (S.D.N.Y. Oct. 18, 2011), aff'd on other grounds sub nom., Marte v. Vance, 480 F. App'x 83 (2d Cir. 2012) (summary order). But before seeking habeas corpus relief under section 2241, a state pretrial detainee must first exhaust available state court remedies. See United States ex rel. Scranton v. New York, 532 F.2d 292, 294 (2d Cir. 1976) ("While [§ 2241] does not by its own terms require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, decisional law has superimposed such a requirement in order to accommodate principles of federalism."). In the pretrial context, such exhaustion includes seeking habeas corpus relief in the state courts and, if necessary, appealing all the way up to the New York Court of Appeals, the State of New York's highest court. See N.Y.C.P.L.R. § 7001, et seq.
Here, Petitioner neither clearly articulates the grounds on which he seeks relief nor pleads facts showing that he has fully exhausted his state court remedies. Petitioner alleges that, on February 17, 2021, he filed a motion to dismiss based on the trial court's lack of jurisdiction over him, and that, on April 8, 2021, the motion was denied. Petitioner does not explain why he thinks the Manhattan Criminal Court lacks jurisdiction or specify what steps he took to appeal the denial of that motion.
Petitioner also alleges that he brought a "second petition . . . [based on] the simple fact [that the] case that [caused him to be] incarcerated was dismissed" (ECF 1 at 4), and he seems to imply that the charges against him for assaulting a correction officer during that incarceration should therefore also be dismissed. Petitioner does not specify whether the state court adjudicated this application or whether, to fully exhaust his state court remedies, he appealed from the denial of his application. Because Petitioner fails to state all of the grounds on which he seeks relief or that his claims are fully exhausted, the Court grants Petitioner leave to amend his petition.
When a district court treats an application filed under some other provision as a section 2241 petition, however, it must notify the pro se petitioner that it intends to recharacterize the pleading and provide the litigant an opportunity to decline the conversion or withdraw the petition. Simon v. United States, 359 F.3d 139, 144 (2d Cir. 2004). If Petitioner does not want to pursue relief under section 2241, he must notify the Court in writing within thirty days that he wishes to withdraw the petition.
If Petitioner wishes to proceed with a section 2241 petition, he must file an amended section 2241 petition in order to: (1) identify all of the grounds on which he seeks relief; and (2) plead facts showing that he has fully exhausted his claims by presenting the grounds for relief to the state courts. If Petitioner fails to respond and does not file an amended section 2241 petition, the Court will dismiss this section 2254 petition without prejudice because Petitioner is not seeking relief from a state court judgment.
CONCLUSION
If Petitioner does not want to pursue relief under 28 U.S.C. § 2241, he may notify the Court in writing within thirty days that he wishes to withdraw the petition.
If Petitioner wishes to proceed with a section 2241 petition, he must file an amended section 2241 petition that: (1) identifies the grounds on which he seeks relief; and (2) pleads facts showing that he has fully exhausted his claims by presenting the grounds for relief to the state courts. The amended petition for a writ of habeas corpus under section 2241 must be submitted to the Court's Pro Se Intake unit within thirty days and bear the docket number 21-CV-3690 (LTS). For Petitioner's convenience, an amended petition form is attached to this order. If Petitioner fails to respond and does not file an amended section 2241 petition, the Court will dismiss this section 2254 petition without prejudice because it does not seek relief from a state court judgment.
The Clerk of Court is directed mail a copy of this order to the Petitioner and note service on the docket.
Because the petition at this time makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: May 17, 2021
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge
PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
Instructions
1. Who Should Use This Form. You should use this form if
• you are a federal prisoner and you wish to challenge the way your sentence is being carried out (for example, you claim that the Bureau of Prisons miscalculated your sentence or failed to properly award good time credits);2. Who Should Not Use This Form. You should not use this form if
• you are in federal or state custody because of something other than a judgment of conviction (for example, you are in pretrial detention or are awaiting extradition); or
• you are alleging that you are illegally detained in immigration custody.
• you are challenging the validity of a federal judgment of conviction and sentence (these challenges are generally raised in a motion under 28 U .S.C. § 2255);3. Preparing the Petition. The petition must be typed or neatly written, and you must sign and date it under penalty of perjury. A false statement may lead to prosecution.
• you are challenging the validity of a state judgment of conviction and sentence (these challenges are generally raised in a petition under 28 U .S.C. § 2254); or
• you are challenging a final order of removal in an immigration case (these challenges are generally raised in a petition for review directly with a United States Court of Appeals).
All questions must be answered clearly and concisely in the space on the form. If needed, you may attach additional pages or file a memorandum in support of the petition. If you attach additional pages, number the pages and identify which section of the petition is being continued. Note that some courts have page limitations. All filings must be submitted on paper sized 8½ by 11 inches. Do not use the back of any page.4. Supporting Documents. In addition to your petition, you must send to the court a copy of the decisions you are challenging and a copy of any briefs or administrative remedy forms filed in your case. 5. Required Filing Fee. You must include the $5 filing fee required by 28 U.S.C. § 1914(a). If you are unable to pay the filing fee, you must ask the court for permission to proceed in forma pauperis - that is, as a person who cannot pay the filing fee - by submitting the documents that the court requires. 6. Submitting Documents to the Court. Mail your petition and 0 copies to the clerk of the United States District Court for the district and division in which you are confined. For a list of districts and divisions, see 28 U.S.C. §§ 81-131. All copies must be identical to the original. Copies may be legibly handwritten.
If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the court to file-stamp it and return it to you.7. Change of Address. You must immediately notify the court in writing of any change of address. If you do not, the court may dismiss your case. __________ Petitioner v. __________ Respondent (name of warden or authorized person having custody of petitioner) Case No. __________
(Supplied by Clerk of Court)
PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
Personal Information
1. (a) Your full name: __________
(b) Other names you have used: __________2. Place of confinement:
(a) Name of institution: __________3. Are you currently being held on orders by:
(b) Address: __________
(c) Your identification number: __________
[ ] Federal authorities [ ] State authorities [ ] Other - explain:4. Are you currently:
__________
[ ] A pretrial detainee (waiting for trial on criminal charges)
[ ] Serving a sentence (incarceration, parole, probation, etc.) after having been convicted of a crime
If you are currently serving a sentence, provide:
(a) Name and location of court that sentenced you: __________
(b) Docket number of criminal case: __________
(c) Date of sentencing: __________
[ ] Being held on an immigration charge
[ ] Other (explain): __________
Decision or Action You Are Challenging
5. What are you challenging in this petition:
[ ] How your sentence is being carried out, calculated, or credited by prison or parole authorities (for example, revocation or calculation of good time credits)6. Provide more information about the decision or action you are challenging:
[ ] Pretrial detention
[ ] Immigration detention
[ ] Detainer
[ ] The validity of your conviction or sentence as imposed (for example, sentence beyond the statutory maximum or improperly calculated under the sentencing guidelines)
[ ] Disciplinary proceedings
[ ] Other (explain): __________
(a) Name and location of the agency or court: __________
(b) Docket number, case number, or opinion number: __________
(c) Decision or action you are challenging (for disciplinary proceedings, specify the penalties imposed): __________
(d) Date of the decision or action: __________
Your Earlier Challenges of the Decision or Action
7. First appeal
Did you appeal the decision, file a grievance, or seek an administrative remedy?
[ ] Yes [ ] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
(b) If you answered "No," explain why you did not appeal: __________8. Second appeal
After the first appeal, did you file a second appeal to a higher authority, agency, or court?
[ ] Yes [ ] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
9. Third appeal
(b) If you answered "No," explain why you did not file a second appeal: __________
After the second appeal, did you file a third appeal to a higher authority, agency, or court?
[ ] Yes [ ] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
(b) If you answered "No," explain why you did not file a third appeal: __________10. Motion under 28 U.S.C. § 2255
In this petition, are you challenging the validity of your conviction or sentence as imposed?
[ ] Yes [ ] No
If "Yes," answer the following:
(a) Have you already filed a motion under 28 U.S.C. § 2255 that challenged this conviction or sentence?
[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Case number: __________
(3) Date of filing: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
(b) Have you ever filed a motion in a United States Court of Appeals under 28 U.S.C. § 2244(b)(3)(A), seeking permission to file a second or successive Section 2255 motion to challenge this conviction or sentence?
[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Case number: __________
(3) Date of filing: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
(c) Explain why the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge your conviction or sentence: __________11. Appeals of immigration proceedings
Does this case concern immigration proceedings?
[ ] Yes [ ] No
If "Yes," provide:
(a) Date you were taken into immigration custody: __________
(b) Date of the removal or reinstatement order: __________
(c) Did you file an appeal with the Board of Immigration Appeals?
[ ] Yes [ ] No
If "Yes," provide:
(1) Date of filing: __________
(2) Case number: __________
(3) Result: __________
(4) Date of result: __________
(5) Issues raised: __________
(d) Did you appeal the decision to the United States Court of Appeals?
[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Date of filing: __________
(3) Case number: __________
12. Other appeals(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________
Other than the appeals you listed above, have you filed any other petition, application, or motion about the issues raised in this petition?
[ ] Yes [ ] No
If "Yes," provide:
(a) Kind of petition, motion, or application: __________
(b) Name of the authority, agency, or court: __________
(c) Date of filing: __________
(d) Docket number, case number, or opinion number: __________
(e) Result: __________
(f) Date of result: __________
(g) Issues raised: __________
Grounds for Your Challenge in This Petition
13. State every ground (reason) that supports your claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
GROUND ONE: __________
(a) Supporting facts (Be brief. Do not cite cases or law.):
__________
(b) Did you present Ground One in all appeals that were available to you?
[ ] Yes [ ] No
GROUND TWO: __________
(a) Supporting facts (Be brief. Do not cite cases or law.):
__________
(b) Did you present Ground Two in all appeals that were available to you?
[ ] Yes [ ] No
GROUND THREE: __________
(a) Supporting facts (Be brief. Do not cite cases or law.):
__________
(b) Did you present Ground Three in all appeals that were available to you?
[ ] Yes [ ] No
GROUND FOUR: __________
14. If there are any grounds that you did not present in all appeals that were available to you, explain why you did not: __________(a) Supporting facts (Be brief. Do not cite cases or law.):
__________
(b) Did you present Ground Four in all appeals that were available to you?
[ ] Yes [ ] No
Request for Relief
15. State exactly what you want the court to do: __________
Declaration Under Penalty Of Perjury
If you are incarcerated, on what date did you place this petition in the prison mail system:I declare under penalty of perjury that I am the petitioner, I have read this petition or had it read to me, and the information in this petition is true and correct. I understand that a false statement of a material fact may serve as the basis for prosecution for perjury. Date: __________
__________
__________
Signature of Petitioner
__________
Signature of Attorney or other authorized person, if any