Opinion
21-CV-6482 (LTS)
10-01-2021
SAMUEL D. MAYS, Petitioner, v. SUPERINTENDENT, BARE HILL CORRECTIONAL FACILITY, Respondent.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, who is currently incarcerated in Bare Hill Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a “violation of parole.” (ECF No. 2 at ¶ 5.) By order dated September 30, 2021, the Court granted Petitioner's request to proceed in forma pauperis (IFP). The Court directs Petitioner to file an amended petition within sixty days of the date of this order as detailed below.
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's submission is not the model of clarity. Petitioner first appears to indicate that he seeks to challenge an Orange County Court conviction for which he was sentenced to six years' incarceration, followed by a three-year period of post-release supervision (ECF No. 2 at ¶¶ 1, 3.) In the area of the Court's form petition that asks Petitioner to identify the crimes for which he has been convicted and sentenced, however, Petitioner writes “violation of probation.” Insofar as Petitioner seeks to challenge a “violation of probation, ” he writes “I was violated on felony probation and not convicted of an additional crime.” (ECF No. 2 at 5.)
A review of the records of the New York State Department of Corrections and Community Supervision reveals that Petitioner is currently incarcerated pursuant to a 2018 conviction in Orange County Court for assault in the second degree for which Petitioner was sentenced to a period of incarceration of six years. See http://nysdoccslookup.doccs.ny.gov/.
DISCUSSION
A. Rule 2 of the Rules Governing Section 2254 Cases
A state prisoner must submit a petition that conforms to the Rules Governing Section 2254 Cases. Rule 2(c) requires a petition to specify all of a petitioner's available grounds for relief, setting forth the facts supporting each of the specified grounds and stating the relief requested. A petition must permit the Court and the respondent to comprehend both the petitioner's grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the petition may be adjudicated.
This Petition does not conform to the requirements of Rule 2(c). Petitioner fails to identify the conviction he seeks to challenge, and he fails to specify his grounds for relief and the supporting facts. Mindful of the Court's duty to construe pro se actions liberally, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the Court has analyzed Petitioner's submission and finds that neither the Court nor a respondent could discern the constitutional basis for the petition.
B. Exhaustion of State Court Remedies
A state prisoner must exhaust all available state remedies before filing a petition for a writ of habeas corpus under § 2254. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982). This exhaustion doctrine means that the state courts must be given the first opportunity to review constitutional errors associated with Petitioner's confinement. O 'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner may satisfy the exhaustion requirement by fairly presenting his claims through a state's established appellate review process. Id. “A petitioner has ‘fairly presented' his claim only if he has ‘informed the state court of both the factual and legal premises of the claim he asserts in federal court.'” Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
In order to exhaust any issues for purpose of habeas corpus review, Petitioner must appeal his judgment of conviction to the New York State Supreme Court, Appellate Division. N.Y. Crim. P. L. § 460.70. Should that court's decision adversely affect Petitioner, he should then seek leave to appeal to the New York Court of Appeals, the highest state court. Id. at § 460.20; see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should Petitioner raise for habeas corpus relief any grounds raised in N.Y. Crim. P. L. § 440.10 motions and/or other collateral motions, he must show that those grounds have been completely exhausted by seeking leave to appeal to the New York State Supreme Court, Appellate Division. Ramos v. Walker, 88 F.Supp.2d 233 (S.D.N.Y 2000).
It is unclear whether Petitioner has exhausted his state-court remedies with respect to this conviction.
C. Leave to Amend Petition
The Court grants Petitioner leave to submit an amended petition within sixty days of the date of this order. Should Petitioner decide to file an amended petition, he must (1) identify the conviction he seeks to challenge; (2) state his grounds for relief; and (3) detail the steps he has taken to fully exhaust the grounds in the New York courts. Petitioner must exhaust all available state court remedies in order to proceed with this petition. See 28 U.S.C. § 2254(b)(1). Petitioner is advised that an amended petition completely replaces the original petition.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
Petitioner is directed to file an amended petition containing the information specified above. The amended petition must be submitted to the Clerk's Office within sixty days of the date of this order, be captioned as an “Amended Petition” and bear the same docket number as this order. An Amended Petition Under 28 U.S.C. § 2254 form is attached to this order which Petitioner should complete as specified above. Once submitted, the amended petition shall be reviewed for substantive sufficiency, and then, if proper, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied.
Because Petitioner has not at this time made a 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).
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket.
SO ORDERED.