Opinion
No. 02 Civ. 734 (JSR)(KNF).
January 28, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Before the Court is Richard Kirsh's ("Kirsh") petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254, and the respondent's motion to dismiss. The respondent contends that Kirsh's petition contains only unexhausted claims and, therefore, should be dismissed without prejudice, pursuant to 28 U.S.C. § 2254(b)(1). For the reasons set forth below, I recommend that respondent's motion be granted.
II. BACKGROUND
On November 3, 1988, Kirsh shot and killed his father, millionaire dry cleaner Marvin Kirsh. At the time of the shooting, Marvin Kirsh was sitting in his 1987 Cadillac in front of the Mobil Oil Building on East 42nd Street in Manhattan. Petitioner was tied to the crime by blood stains found on his clothing; DNA testing had identified the blood as belonging to Marvin Kirsh.
The factual and procedural history presented here derives from the petitioner's amended petition for a writ of habeas corpus, dated March 15, 2002, and the respondent's affidavit in support of the motion to dismiss, plus accompanying exhibits, dated March 22, 2004.
On October 15, 1991, petitioner was convicted in New York State Supreme Court, New York County, for murder in the second degree, see N.Y. Penal Law § 125.25(1), and sentenced to an indeterminate term of imprisonment of twenty-five years to life. Petitioner filed a timely notice of appeal and sought leave to prosecute his appeal as a poor person. On January 21, 1992, the New York State Supreme Court, Appellate Division, First Department, denied Kirsh's motion to proceed as a poor person, without prejudice to renewal "upon a more detailed showing of need under the provisions of [New York Civil Practice Law and Rules] CPLR [§] 1101, including a statement setting forth the amount and sources of his income and listing any property and value thereof and as to the merits of the appeal." Counsel for the respondent avers that the prosecution's files reveal that petitioner never renewed that motion. Instead, on January 12, 1994, petitioner advised the court that he was proceeding on direct appeal pro se and asked that the time to perfect the appeal be enlarged.
On April 7, 1994, the Appellate Division granted the petitioner's request and enlarged his time to perfect his appeal until September 1994. Petitioner did not meet this deadline. Thereafter, petitioner moved for "a writ of habeas corpus and for dismissal of the indictment and conviction on law and evidence." That motion was denied by the Appellate Division, "without prejudice to defendant to address the issues on the appeal from his conviction." Additionally, the court again enlarged petitioner's time to perfect his appeal, until June 1995. Petitioner then sought reconsideration of the denial of his motion for a writ of habeas corpus; the court denied that request but, sua sponte, extended, for a third time, the date on which petitioner was required to perfect his appeal, until November 1995.
On March 27, 2002, petitioner, proceeding pro se, filed an amended petition for a writ of habeas corpus. Petitioner alleges that his confinement by New York State is unlawful because: (1) he was denied his right to appeal by the denial of his application to prosecute his appeal as a poor person, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution; (2) the state courts lack jurisdiction over him; (3) he is actually innocent; (4) the prosecution knowingly introduced perjured testimony at his trial, and destroyed and altered evidence, in violation of the Fifth, Sixth and Fourteenth Amendments; (5) he was denied his constitutional right to due process when he was denied an opportunity to testify before a grand jury; (6) he was denied his constitutional right to counsel; (7) he was denied his constitutional right to the effective assistance of counsel; (8) he was the victim of an unlawful search and seizure, in violation of the Fourth Amendment; (9) he was the victim of judicial bias during his trial; (10) the prosecution withheld exculpatory, or Brady, material at trial, in violation of the Sixth and Fourteenth Amendments; and (11) he was denied his constitutional right to due process when he was detained for two and one-half years prior to the commencement of his trial, with "barely any contact with lawyer, family, witnesses."
Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the prosecution is obligated to disclose to a criminal defendant exculpatory information which is known to be material to a defendant's guilt or punishment. The defendant is denied due process of law if the prosecution suppresses such material.
Respondent contends that Kirsh's petition should be dismissed without prejudice because Kirsh has failed to exhaust his state remedies with respect to the claims raised in the petition. Moreover, respondent maintains, there are available state corrective processes by which Kirsh can obtain review of those claims. In opposing the motion to dismiss, petitioner emphasizes his actual innocence, asserting that he has demonstrated "actual, factual, legal, scientific, DNA innocence." Petitioner states that he "has no money, no assets, and has not been able to obtain pro bono appellate counsel," that he has brought the matter of his efforts to obtain poor person status to the attention of the Appellate Division "repeatedly," by way of motions, briefs and other correspondence, and that "further efforts are futile."
III. DISCUSSION
A habeas corpus petition brought by a state prisoner shall not be granted unless "the applicant has exhausted the remedies available in the courts of the State; or . . . there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). Furthermore, "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by an available procedure, the question presented." 28 U.S.C. § 2254(c). See also Galdamez v. Keane, ___ F.3d ___, No. 03-2595, 2005 WL 15136, at *3-4 (2d Cir. Jan. 4, 2005); Defino v. Thomas, No. 02 Civ. 7413, 2003 WL 40502, at *2-3 (S.D.N.Y. Jan. 2, 2003).
Premised on the principles of comity, the exhaustion doctrine assures "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions," Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) ( en banc), and "increas[es] the likelihood that the factual allegations necessary to a resolution of [a] claim will have been fully developed in state court, making federal habeas review more expeditious." Id.
To satisfy the exhaustion doctrine, a habeas corpus petitioner must meet a two-pronged test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye, 696 F.2d at 190-91 n. 3. A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191. Second, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state [appellate] review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
In this case, the petitioner has not "fairly presented" either the factual or legal premises of any of the claims raised in his habeas corpus petition to any New York state court, let alone the state's highest court. As noted above, although petitioner filed a timely notice of appeal, he has never perfected his appeal, despite having received, on three occasions, an enlargement of the time in which to do so. Thus, petitioner has not provided "the State [with] an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Acosta v. Giambruno, 326 F. Supp. 2d 513, 521 (S.D.N.Y. 2004) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512) (internal quotation marks omitted).
Petitioner contends that he was unable to perfect his appeal because his application for poor person status was "opposed by the District Attorney and affirmed by the Appellate Division" and his efforts to obtain pro bono counsel have been unsuccessful. However, a review of the record reveals that petitioner has failed to renew his application for poor person status or to comply with the court's directive that he demonstrate his entitlement to such relief by submitting to the court the relevant supporting documents, pursuant to CPLR § 1101.
CPLR § 1101 provides, in pertinent part, that a petitioner seeking leave to proceed as a poor person must:
file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal. . . .
CPLR § 1101(a).
Moreover, petitioner has failed to establish that his case falls within one of the statutory exceptions to the exhaustion requirement. It appears that many, if not all, of the claims raised in petitioner's habeas corpus petition are cognizable on direct appeal, and any claims which are based on evidence outside the trial record presumably can be raised by way of a New York Criminal Procedure Law § 440.10 motion to vacate the judgment of conviction. Thus, petitioner has not shown that there is an absence of available state corrective process by which he can secure review of his claims.
Petitioner's failure to comply with the Appellate Division's November 1995 deadline for perfecting his appeal may be deemed by that court to have resulted in a procedural bar to pursuit of this remedy. However, it would be inappropriate for the Court to treat an apparent failure to exhaust as a procedural default in the absence of an unequivocal conclusion that no state remedies remain available to the petitioner. See, e.g., Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
Furthermore, petitioner has not shown that circumstances render state corrective procedures ineffective to protect his rights. As noted above, in opposing the instant motion, petitioner emphasizes his claim of actual innocence. However, petitioner does not explain how his alleged innocence exempts him from the exhaustion requirement. Moreover, petitioner has not shown that invocation of a state remedy would be futile or that requiring exhaustion would be egregiously unfair to him for some other reason. Therefore, the Court concludes that petitioner has not exhausted his state remedies with respect to the claims raised in his habeas corpus petition or demonstrated that he is entitled to review of his claims based on one of the exceptions to the exhaustion requirement as set forth in the federal habeas corpus statute. Accordingly, the Court finds that Kirsh's petition for a writ of habeas corpus should be dismissed without prejudice.
Since it does not appear that petitioner has procedurally defaulted his federal claims in state court, the question does not arise whether, inter alia, a fundamental miscarriage of justice would attend if the claims were not reviewed. See, e.g., Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986) (holding that a fundamental miscarriage of justice exists where a person has been convicted who is "actually innocent"); Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995).
Under Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 543 U.S. 1015, 122 S. Ct. 506 (2001), if Kirsh's petition contained both exhausted and unexhausted claims, a stay of the exhausted portion of the petition pending exhaustion of state remedies with respect to the other claims raised in the petition would be mandated. However, since Kirsh's petition contains only unexhausted claims, the Court has no basis to retain jurisdiction while he returns to state court to pursue exhaustion.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that respondent's motion to dismiss, without prejudice, petitioner's application for a writ of habeas corpus be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).