Opinion
01 Civ. 8743 (LAP)(FM)
April 12, 2002
REPORT AND RECOMMENDATION
I. Background
In this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner William Ramos ("Ramos") challenges his conviction on one count of Robbery in the Second Degree, in violation of Section 160.10 of the New York Penal Law, after a jury trial in Supreme Court, New York County. (See Pet. ¶ 4). On September 23, 1998, Justice Rena Uviller sentenced Ramos, as a predicate violent felon, to a fifteen-year term of imprisonment. For the reasons set forth below, I recommend that Ramos' petition be dismissed without prejudice because each of the claims that he seeks to raise is unexhausted.
A. Habeas Petition Ramos' thirty-four-page handwritten petition can be liberally construed to allege the following claims: (1) that his conviction is based on insufficient evidence (id. at 1-3 passim); (2) that the trial court erred by instructing a prosecution witness undergoing cross examination that she could speak to the prosecutor during a recess about obtaining lunch (id. at 5-6); (3) that the identification of Ramos at a hospital was improperly suggestive (id. at 8-12); and (4) that the trial court erred by instructing the jury that "a holdout is not a hero" (id. at 34).
B. Procedural History
Ramos did not advance any of these claims in his direct appeal to the Appellate Division, First Department. Instead, the sole ground raised was that he had been deprived of his right to a fair trial as a consequence of the trial judge's failure to provide the jurors with an "expanded identification charge" or an instruction that identification must be proved beyond a reasonable doubt. (Aff. of Asst. Atty. Gen. Beth J. Thomas, sworn to on Feb. 19, 2002 ("Thomas Aff."), Ex. A (Ramos App. Br.) at 13-20). The Appellate Division unanimously rejected this argument and affirmed Ramos' conviction on April 12, 2001. See People v. Ramos, 282 A.D.2d 278, 723 N.Y.S.2d 352 (1st Dep't 2001). Thereafter, on July 2, 2001, the New York Court of Appeals denied his application for leave to appeal. People v. Ramos, 96 N.Y.2d 906, 756 N.E.2d 92 (2001).
Ramos did not seek a writ of certiorari from the United States Supreme Court. Accordingly, his conviction became final on October 1, 2001. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (judgment is final following expiration of ninety-day period to seek writ of certiorari from Supreme Court).
C. Request for a Stay
After filing his habeas petition, Ramos submitted a letter to the Court late last year asking that his petition be stayed so that he could explore whether he had properly exhausted his state court remedies. (See letter from Ramos to Court dated Dec. 21, 2001). A subsequent letter from Ramos indicated that his uncertainty stemmed from a letter that his appellate counsel sent him following the denial of his application for leave to appeal. (See letter from Ramos to the Court dated Mar. 20, 2002). That letter allegedly stated, in part, that Ramos' "[s]tate remedies are now [e]xhausted." (Id.).
By letter dated March 13, 2002, Ramos advised the Court that he recently had filed a motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law. (See letter from Ramos to the Court dated Mar. 13, 2002). Thereafter, by letter dated March 25, 2002, Ramos sent the Court a copy of this motion, which raises three claims not previously asserted in either his habeas petition or his brief to the Appellate Division. First, Ramos complains that he was deprived of a hearing to determine his competency to stand trial. Second, Ramos contends that his trial counsel was ineffective for several reasons, including counsel's failure to learn of Ramos' extensive psychiatric history, failure to conduct a reasonable investigation to unearth that history, and failure to make the history known to the trial judge. Third, Ramos alleges that he was deprived of his "statutory and constitutional rights" to be present during jury selection.
The Respondent contends that no purpose would be served by a stay because each of the claims in Ramos' petition is unexhausted. (See Thomas Aff. Ex H (letter from Ms. Thomas to the Court dated Jan. 3, 2002)). Accordingly, the Respondent urges the Court either to "order petitioner to withdraw his petition and re-file once he has decided which claims he wishes to raise" or to reject his request and "order that petitioner proceed on the instant petition." (Id.).
II. Discussion
Pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts, there is an absence of state corrective process available to the petitioner, or circumstances render that process ineffective to protect his rights. Ramos plainly had an effective process available to him through the New York criminal procedure statutes authorizing not only a direct appeal but collateral applications to vacate judgments of conviction. Accordingly, to satisfy the exhaustion requirement with respect to a particular federal claim, Ramos must show that he "fairly presented" it to the state courts, see, e.g., Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865, 868 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, 443 (1971), including the highest available state court. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1995).
Ramos plainly has failed to exhaust his available state court remedies with respect to each of the four claims in his habeas petition. Neither Ramos' brief to the Appellate Division, nor his letter to the Court of Appeals seeking leave to appeal, nor his motion to vacate the judgment of conviction addresses any of these claims. Accordingly, if Ramos' petition were to be considered, the Court's only option would be to dismiss it on exhaustion grounds. This, however, would likely deprive Ramos of the ability to present any of his claims in a later petition. See 28 U.S.C. § 2244(b)(2).
Ramos suggests as an alternative that his petition should be stayed. As the Second Circuit recently has indicated, if Ramos' petition contained any exhausted claims, the appropriate course of action would be to dismiss the unexhausted claims, stay the remainder of the petition, and direct Ramos to notify the Court within a short period after he has completed the exhaustion of his state court remedies. Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001). Here, however, Ramos' petition contains no exhausted claims. Accordingly, this Court has no basis to retain jurisdiction while Ramos pursues exhaustion. Although the Antiterrorism and Effective Death Penalty Act imposed a one-year statute of limitations on the filing of habeas petitions, it appears that the dismissal of this proceeding will not prejudice Ramos for several reasons. First, Ramos' conviction evidently did not become final until October 1, 2001. Second, if he acts promptly, Ramos will also have the benefit of the statutory stay applicable to periods when an application for collateral relief is actually pending. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001); 28 U.S.C. § 2244(d)(2). Finally, it is only by dismissing the petition that Ramos will be able to bring his additional claims without running afoul of the AEDPA provisions concerning second or successive petition petitions. Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 1604-05, 146 L.Ed. 2d 452 (2000); Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996) (per curiam).
III. Conclusion
For the reasons set forth above, the Court should dismiss Ramos' petition without prejudice because he has failed to exhaust his state court remedies. Ramos should be cautioned that he needs to bring his unexhausted claims before the state court promptly and that he should file a new habeas petition as soon as he has exhausted all of his claims to avoid their being time barred. Ramos should also be warned that federal habeas review will be precluded as to any claims that are procedurally defaulted, unless he can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).