Opinion
Civil No. 9:00-CV-1603 (TJM/GLS)
January 23, 2003
STEPHEN HARRISON, Petitioner, Pro Se, 95-A-1467, Fishkill Correctional Facility, Beacon, NY, FOR THE PETITIONER.
HON. ELIOT SPITZER, DOUGLAS GOGLIA, ESQ., Asst. Attorney General, Office of the Attorney General, Albany, NY, FOR THE RESPONDENT.
Report and Recommendation and Order
I. Introduction
Pending are two motions. One is to withdraw three unexhausted claims from his 28 U.S.C. § 2254 habeas corpus petition filed by Stephen Harrison. See Dkt. Nos. 1, 17. The second is a summary judgment motion filed by respondent (hereinafter, "government"). See Dkt. Nos. 13-16. The court recommends that Harrison's motion be granted, recommends that the government's motion be denied as moot regarding the withdrawn claims, and for the reasons previously articulated in Pizza v. Nash, 2001 WL 1862808 (N.D.N.Y. Oct. 11, 2001) (adopted by Judge Hurd at 9:01-CV-757, Dkt. No. 15), recommends that the government's motion be denied with leave to re-file an answer pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts regarding the exhausted claim. See also, Murray v. Warden, FCI Raybrook, 2002 WL 31741247, at *5, 12-13 (N.D.N.Y. Dec. 5, 2002). As to the recommended denial of the exhausted claim, there is simply no reason to deviate from the normal practice requiring respondent to file an answer and underlying records, to be followed by judicial review of the conviction. See Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts; L.R. 72.4.
This matter has been referred for Report-Recommendation by the Honorable Thomas J. McAvoy pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
II. Background
Harrison's petition challenges his 1995 Albany County Court conviction for attempted arson and multiple counts of reckless endangerment resulting in a sentence of 8 1/3 to 25 years. In four grounds, he asserts that his conviction is tainted because: (1) the prosecution failed to disclose favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286 (1961); (2) he received ineffective assistance of counsel; (3) he was improperly denied a hearing to settle the trial transcripts; and, (4) there was an unlawful search at the time of his arrest. See Pet., Dkt. No. 1.
Harrison first filed his petition in the Southern District of New York which transferred it here as the district of conviction. Dkt. No. 3. This court subsequently issued an order directing the government to file a response and after several adjournments, the government filed a motion for summary judgment. Dkt. Nos. 6, 13-16. The government argues that Harrison has failed to exhaust available state remedies as to grounds 2-4 and, therefore, his is a mixed petition that must be dismissed. See Gov't Mem. of Law ("Gov't MOL"), and Goglia Decl., Dkt. Nos. 15, 16. Harrison responded with a motion to withdraw the unexhausted claims. Dkt. No. 17. The government has never substantively responded to the exhausted claim.
III. Discussion
As this court has observed, responding to a habeas petition with either a motion to dismiss or for summary judgment raises fundamental issues concerning the most appropriate method of processing habeas cases in this district. Therefore, respondents must give thoughtful consideration to that decision, and apply professional judgment as well as the habeas and local rules. Pizza at *1, 2.
By their express terms, the habeas rules apply to § 2254 petitions. Rule 1(a), Rules Governing Section 2254 Cases in the District Courts, foll. 28 U.S.C. § 2254. Rules 4 and 5 require an answer and specified records from the underlying proceedings. Rule 11 does permit the discretionary use of the Federal Rules of Civil Procedure, when appropriate. On occasion, this district has elected to do so, principally because there is a straight forward challenge to the court's jurisdiction that may obviate consideration of other issues a petitioner might raise. For instance, if the petition is a second or successive application and there is no required certification by the court of appeals, there may well be a jurisdictional challenge to the district court's authority ab initio. See 28 U.S.C. § 2244(3). So too, the court has suggested that a motion to dismiss might be appropriate when there is a clear violation of the new statute of limitations. See 28 U.S.C. § 2244(d)(1).
However, respondents must understand that the court frequently needs access to the underlying record to resolve what, at first blush, appears to be the simplest of issues. In this case, the government cites Rose v. Lundy, 455 U.S. 509, (1982) and the new habeas statute, 28 U.S.C. § 2254(b)(1), for the proposition that a petitioner must exhaust, and the court should dismiss the petition if he does not. Gov't MOL at 4; see also, Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 125 (2d Cir. 1995) (court may not address exhausted claims in a petition mixed with unexhausted claims). Of course, such simplicity may well ignore certain realities of habeas litigation. For instance, Levine is no longer binding, and a habeas court may now pass on the merits of unexhausted claims. 28 U.S.C. § 2254(b)(2); see also, Berger v. Stinson, 97 F. Supp.2d 359, 363 (W.D.N.Y. 2000). So too, a petitioner might do precisely what Harrison did in his response; namely, withdraw the unexhausted claims. The court is then left with no basis to resolve the petition because it has neither a response on the merits from the government nor the requisite underlying records. The court is left with no recourse but to extend the response time and further prolong the litigation.
There are numerous other habeas principles that may require a review of the underlying record, and demonstrate why a motion to dismiss or for summary judgment are inappropriate habeas responses. For example and under certain circumstances, the failure to exhaust may be excused as a procedural bar if supported by cause and prejudice, or there can be an issue concerning whether exhaustion actually occurred which may require reference to the appellate briefs. See e.g., Vazquez v. Bennett, 2002 WL 619282 (S.D.N.Y. Ap. 17, 2002); Harris v. Hollins, 1997 WL 5909 (S.D.N.Y. Jan. 7, 1997). Even as to motions asserting a violation of the new statute of limitations, the court may need the underlying record to address principals of statutory and equitable tolling. See 28 U.S.C. § 2244(d)(1-2); see also e.g., El Rhagi v. Artuz, 309 F.3d 103 (2d Cir. 2002); Clark v. Barkley, 51 Fed. Appx. 332, 2002 WL 31388978 (2d Cir. Oct. 22, 2002); Bond v. Walsh, 53 Fed.Appx., 2002 WL 31832555 (2d Cir. Dec. 17, 2002).
As noted, there is no substitute for professional judgment, exercised with a full understanding of the almost inevitable prospect that the court will need access to the underlying record.
IV. Conclusion
For the reasons stated, it is hereby
RECOMMENDED that the District Court GRANT the motion of STEPHEN HARRISON (Dkt. No. 17) to withdraw his unexhausted claims categorized herein as numbers 2-4, and it is further
RECOMMENDED that the District Court, as to the unexhausted claims categorized as 2-4 herein, DENY respondent's motion for summary judgment (Dkt. Nos. 13-16) as MOOT, and as to the exhausted claim categorized as 1 herein, DENY respondent's motion for summary judgment with LEAVE TO RE-FILE AN ANSWER PURSUANT TO RULE 5 OF THE RULES GOVERNING SECTION 2254 CASES IN THE DISTRICT COURTS WITHIN SIXTY (60) DAYS OF THE DISTRICT COURT'S DECISION REGARDING THIS REPORT AND RECOMMENDATION, and it is
ORDERED that the Clerk of the Court serve a copy of this Report and Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).