Opinion
22-CV-5812 (LTS)
08-09-2022
RAMI BALY, Petitioner, v. CERTIFICATE OF APPEALS SUPREME COURT OF NEW YORK, Respondent.
ORDER TO AMEND
Laura Taylor Swain Chief United States District Judge
Petitioner, who is not currently incarcerated, proceeds pro se. He brings this application, which is styled as a “motion for a certificate of appealability,” to challenge his 2017 conviction in the New York Supreme Court, New York County.
The Court directs Petitioner, within 30 days, to file an amended petition if he intends to pursue a petition for a writ of habeas corpus under 28 U.S.C. § 2254. As explained below, if Petitioner files an amended petition, he must include facts showing that he is in custody (physical or constructive) on the challenged conviction, and clarify the constitutional grounds on which he seeks relief and whether these grounds have been exhausted in the state courts.
On July 21, 2022, the Court received Petitioner's $5.00 filing fee for this matter.
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. Artuz, 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 Rami Baly was arrested on June 13, 2016, in the Chelsea neighborhood of Manhattan. (ECF 1 at 3.) He was convicted, after a nonjury trial, of public lewdness and exposure of a person. Petitioner indicates that the New York Supreme Court, New York County, entered judgment on March 2, 2017, sentencing him to “three years of probation and other added restitution.” (Id. at 4.)
The conviction was affirmed on appeal. See People v. Baly, 157 N.Y.S.3d 662 (1st Dep't Jan. 10, 2022). The Appellate Division, First Department, rejected Petitioner's arguments that the accusatory instrument was jurisdictionally defective, that the evidence was insufficient to support the verdict, and that the witness testimony was insufficient to establish Petitioner's intent to commit the crime. Id. The New York Court of Appeals denied leave to appeal. People v. Baly, 38 N.Y.3d 948 (Mar. 31, 2022).
Petitioner now indicates that “certification of appeals is requested to request habeas corpus.” (ECF 1 at 4.) The grounds on which he seeks relief are unclear. Petitioner asserts the following:
The procedure broke the defendants Due Process, by wrongly reaching a verdict in this case. The District Attorney counsel of the county of New York on ‘Rules of Evidence,' 60.50 statement of defendant; corroboration of a person, may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.(Id. at 6.)
He also argues, for example, the following:
Under advocate witness rule, where a prosecuting attorney is to be called as a witness by defense and his testimony will be adverse to people, he should be disqualified. (People v. Perry, 1985, 127 Misc.2d 562, 486). The statute introduces the mind to assert that reasonable cause exists to evidence information to appear reliable to disclose facts or circumstances collectively of such weight and persuasive new to convince a person or ordinary intelligence, judgment and experience” that likely such offense was committed and that a person committed it.(Id. at 9.)
The spelling, grammar, and punctuation in all quoted material are from the original.
In terms of the relief requested, Petitioner refers to a certificate of appealability and also states that he “request[s] Article 70 Special Proceeding, under Art. 78 Habeas Corpus.” (Id.)
The petition is not captioned for this Court or the state court. (ECF 1 at 1.) Petitioner also submitted an order to show cause, which is captioned for the state court (ECF 6 at 1), which suggests that he may have intended to file this action in state court rather than federal court.
DISCUSSION
I. Characterization of application as a Section 2254 petition
Petitioner challenges his 2017 judgment of conviction in state court. He invokes New York State's habeas corpus statute, N.Y. Crim. Proc. Law § 7200, but relief under that statute is not available in federal court. If Petitioner intends to proceed in federal court, his application must be construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Section 2254 applies when a petitioner challenges “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 habeas petitioner generally has only one opportunity within the limitations period for an adjudication of the merits of his challenge to a judgment of conviction. See Cook v. New York State Div. of Parole, 321 F.3d 274, 281 (2d Cir. 2003) (“Under 28 U.S.C. § 2244(b), a prisoner cannot bring a ‘second or successive' section 2254 petition except under narrow circumstances.”). District courts therefore must notify a petitioner before recharacterizing an application, brought under some other provision, as a Section 2254 petition. Id. at 282 (converting a mislabeled petition to one brought under Section 2254 could cause the petitioner to forfeit claims “due to the severe ‘second or successive' restrictions of section 2244 (for state prisoners)”).
If Petitioner intends to proceed with this action in federal court, the application must be recharacterized as a Section 2254 petition. The Court therefore directs Petitioner, within 30 days, to file an amended Section 2254 petition, as described below. If Petitioner does not file an amended Section 2254 petition within 30 days, or seek an extension of time to do so, the Court will dismiss this application without prejudice.
II. Custody
The United States district courts have jurisdiction to entertain petitions for habeas corpus relief only from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted these provisions as “requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001).
Custody, for purposes of a petition for a writ of habeas corpus in federal court, is not limited to actual, physical confinement. Rather, a habeas petitioner is deemed in custody where there are sufficient restraints on his liberty because of his conviction and sentence, Jones v. Cunningham, 371 U.S. 236 (1963), such as where a petitioner is released on his own recognizance pending trial, Hensley v. Municipal Court, 411 U.S. 345 (1973), or is on supervised release, Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006), or probation, United States v. Shelly, 430 F.2d 215, 217 n. 3 (2d Cir. 1970). Cf. Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (holding that upon expiration of period of supervised release, a habeas petitioner was no longer “in custody”).
Here, Petitioner alleges that in 2017, he was sentenced to three years' probation; his sentence thus may have fully expired before he filed this action in July 2022, five years after judgment was entered. It therefore appears that Petitioner may not be in custody for purposes of a Section 2254 petition. If Petitioner wishes to proceed with a Section 2254 petition and chooses to file an amended petition, the Court directs him to include any facts showing that he remains in custody on the challenged conviction.
III. Grounds for relief
A state prisoner must submit a petition that conforms to the federal Rules Governing Section 2254 Cases. Rule 2(c) of the Rules Governing Section 2254 Cases 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 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.
If Petitioner files an amended petition, the Court directs him to include a short, plain statement identifying each ground for relief, and the constitutional basis for each ground. The Court suggests that Petitioner use the Court's form, which is attached to this order.
IV. 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 Section 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)).
Petitioner filed a direct appeal from his conviction and sought leave to appeal to the New York Court of Appeals, which was denied. Because the constitutional grounds on which Petitioner seeks relief are unclear, the Court cannot determine whether the grounds for relief were raised on direct appeal or were exhausted in post-conviction motions. If Petitioner chooses to file an amended petition, he must show, for each ground for relief that he raises, that he has presented it to the state court for a complete round of review.
If Petitioner raises for habeas corpus relief any grounds raised in motions under N.Y. Crim. Proc. L. § 440.10, 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. See Ramos v. Walker, 88 F.Supp.2d 233 (S.D.N.Y. 2000).
V. Leave to Amend Petition
The Court grants Petitioner leave to submit an amended petition within 30 days of the date of this order. Should Petitioner decide to file an amended petition, he must state his grounds for relief and detail the steps he has taken to exhaust them fully in the New York courts. Petitioner must exhaust all available state court remedies in order to proceed with this petition. He must also include facts showing that he is in custody on the challenged conviction. Petitioner is advised that an amended petition completely replaces, rather than supplements, the original petition.
CONCLUSION
Petitioner is directed to file an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 containing the information specified above. The amended petition must be submitted to the Clerk's Office within 30 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.
If Petitioner does not wish to have this action recharacterized as a Section 2254 petition, and fails to either file an amended Section 2254 petition within 30 days, or request an extension of time to do so, this action will not be recharacterized and will be dismissed without prejudice.
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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Petition for ReliefFrom a Conviction or Sentence By a Person in State Custody
(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)
Instructions
1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief.
2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answerallthequestions. Youdonotneedtocitelaw. Youmaysubmitadditionalpagesifnecessary. Ifyoudo not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. Youmustpayafeeof$5. Ifthefeeispaid,yourpetition willbefiled. Ifyoucannotpay thefee,youmayaskto proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $, you must pay the filing fee.
7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge ajudgment entered by a different court (either in the same state or in different states), you must file a separate petition.
8. Whenyouhavecompletedtheform,sendtheoriginaland copiestotheClerkoftheUnitedStatesDistrict Court at this address:
Clerk, United States District Court for Address City, State Zip Code
9. CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.