Opinion
19-CV-2100 (CM)
04-17-2019
JOSEPH CANNON, Petitioner, v. ANTHONY ANNUCCI, Respondent.
ORDER OF DISMISSAL :
Petitioner, currently incarcerated at the Auburn Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his December 12, 2018 judgment of conviction in New York Supreme Court, New York County. By order dated April 8, 2019, the Court granted Petitioner's request to proceed in forma pauperis. The Court denies the petition without prejudice as prematurely filed.
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)).
DISCUSSION
Before a petitioner can seek federal habeas relief, § 2254 requires exhaustion of all available state remedies. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982). A habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State...if he has the right under the law of the State to raise, by any available procedure, the question presented." § 2254(c). In other words, if the State provides a procedure, a habeas petitioner must take advantage of that procedure before coming to federal court. The state judicial system must be given the first opportunity to review the errors raised by a petitioner before this Court may review a petition for a writ of habeas corpus brought under § 2254. See Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003).
To exhaust his claims for purpose of habeas corpus review, a petitioner must wait for the Appellate Division to decide the outcome of his appeal. If the petitioner is adversely affected by that court's decision, he must seek leave to appeal to the New York Court of Appeals, the highest state court. N.Y. Crim. P. L. § 460.20; see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). If the petitioner files any N.Y. Crim. P. L. § 440.10 motions and/or other collateral motions, he must completely exhaust the claims in those motions 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).
On November 19, 2018, Petitioner was convicted of fourth degree grand larceny and resisting arrest. On December 12, 2018, the trial court sentenced Petitioner. He asserts that he did not appeal his judgment of conviction.
Petitioner attaches an exhibit, dated December 10, 2018, indicating that he is seeking leave to file a late notice of appeal in another criminal case under indictment No. 2069/15. (Pet. 1-3 at 1.) --------
Because Petitioner alleges that he has not exhausted his state court remedies, the petition is denied as prematurely filed. After Petitioner has fully exhausted his state court remedies to the Court of Appeals, he may file his habeas corpus petition in this Court.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to the Petitioner and note service on the docket. The Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 is denied without prejudice.
Because the petition makes no 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).
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: April 17, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge