Opinion
No. 04-CV-2348 (FB).
March 11, 2005
BOLIVAR CARDENAS-ARGUDO, Pro Se Malone, NY, for the Petitioner.
ELIOT SPITZER, Attorney General for the State of New York By: MICHAEL P. KING, Assistant Attorney General, New York, NY, for the Respondent.
MEMORANDUM AND ORDER
Pro se Petitioner Bolivar Cardenas-Argudo ("Cardenas-Argudo") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the New York State Commissioner of Correctional Services' ("Commissioner") denial of jail-time credit for time served in federal custody. The Commissioner moves to dismiss the petition for failure to exhaust state remedies. For the reasons set forth below, the Court directs Cardenas-Argudo to show cause why his petition should not be dismissed.
BACKGROUND
On October 31, 1994, Cardenas-Argudo, who had previously been deported from the United States, was arrested by federal authorities for illegal reentry. On November 16, 1995, he was sentenced in the Eastern District of New York to a 48-month prison sentence on a plea of guilty to a charge of illegal reentry.
On February 22, 1996, pursuant to a New York State warrant, he was transferred to State custody to be tried for his involvement in an October 3, 1994 murder. On June 7, 1996, following a plea of guilty to a charge of first-degree manslaughter, he was sentenced by the New York State Supreme Court, Queens County, to 10 to 20 years of imprisonment, to run concurrently with his federal sentence. In his petition, Cardenas-Argudo contends that in computing jail time to be served on this sentence, the Commissioner failed to give him credit for the time that he served in federal custody.
I.
Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Cardenas-Argudo's petition fails to articulate the federal right that he claims has been violated. Nonetheless, because he is proceeding pro se, the Court will construe his petition liberally, see Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983), as stating a claim for denial of due process. See Cook v. New York State Div. of Parole, 321 F.3d 271, 278 (2d Cir. 2003) (treating petition claiming state incarceration beyond that authorized by judgment and sentence as federal due process claim); see also Haygood v. Younger, 769 F.2d 1350, 1355-58 (9th Cir. 1985) (holding that miscalculation of a state prisoner's jail-time credit may state a claim for denial of due process).
The Court notes that, unlike a due process challenge to state procedures used to deny parole eligibility or suitability, for which a prisoner may bring an action under § 1983 seeking a new parole hearing, see Wilkinson v. Dotson, ___ S.Ct. ___, 2005 WL 516415 (Mar. 7, 2005), for a challenge such as Cardenas-Argudo's, where success would result in "a shorter stay in prison," id. at *5, habeas is the exclusive source of relief in federal court. See id. (explaining that if success in the action would "demonstrate the invalidity of confinement or its duration," a state prisoner may not proceed under § 1983 and must, instead, seek federal habeas relief).
It is well settled that "federal habeas relief is not available unless the [petitioner] has exhausted the remedies available in the courts of the State." Jones v. Keane, 329 F.3d 290, 294 (2d Cir. 2003) (citing 28 U.S.C. § 2254(b)(1)(A)). "Exhaustion requires a petitioner fairly to present the federal claim in state court." Id. Under New York law, the mechanism for challenging a denial of jail-time credit is a petition under Article 78 of the New York Civil Practice Law and Rules. See N.Y.C.P.L.R. Art. 78. If an Article 78 petition is denied, the prisoner may appeal to the Appellate Division, and if such appeal is denied, may seek leave to appeal to the New York Court of Appeals. See Rossney v. Travis, 2003 WL 135692, at *5 (S.D.N.Y. Jan. 17, 2003). Because a habeas petitioner must fairly present his federal claim to the "highest state court from which a decision can be had," Daye v. Attorney General, 696 F.2d 186, 190 n. 3 (2d Cir. 1982), a challenge to the denial of jail-time credit alleging a violation of due process is not exhausted until the New York Court of Appeals denies leave to appeal. See Rossney, 2003 WL 135692, at *5 (holding the petitioner exhausted due process challenge to the execution of his sentence when the New York Court of Appeals denied leave to appeal the Appellate Division's denial of his appeal from an Article 78 proceeding).
In his motion, the Commissioner contended that Cardenas-Argudo did not initiate an Article 78 proceeding and, therefore, that his habeas petition should be dismissed for failure to exhaust state remedies. In response, Cardenas-Argudo submitted to the Court certain papers relating to an Article 78 proceeding that he initiated in New York Supreme Court, Westchester County, in February 2000. However, neither Cardenas-Argudo nor the Commissioner has provided the Court with any information regarding the disposition of that Article 78 proceeding, including whether it was granted or denied by the New York Supreme Court, whether, if denied, Cardenas-Argudo appealed to the Appellate Division, or whether, if the Appellate Division denied such appeal, he sought leave to appeal to the New York Court of Appeals. Moreover, the record does not reflect whether Cardenas-Argudo presented a federal due process in that Article 78 proceeding. Based on this record, the Court cannot determine whether he has exhausted state remedies for his federal claim.
These include Cardenas-Argudo's pro se Article 78 petition, dated February 29, 2000, and an order dated June 28, 2000, assigning counsel to represent him in the Article 78 proceeding.
Accordingly, Cardenas-Argudo is hereby directed to show cause by written affirmation, within thirty days from the date of this Order, why his petition should not be dismissed for failure to exhaust state remedies for his federal claim. Specifically, he shall provide the Court with information and documentation regarding the current status of his Article 78 petition, including copies of any state court orders relating to that petition. No answer shall be required at this time and all further proceedings shall be stayed for thirty days or until Cardenas-Argudo has complied with this Order. If he fails to comply within the time allowed, the petition shall be dismissed.
An affirmation form is attached to this Order for Cardenas-Argudo's convenience.
SO ORDERED.
PETITIONER'S AFFIRMATION
STATE OF NEW YORK } } ss: COUNTY OF ____ }I, BOLIVAR CARDENAS-ARGUDO, make the following affirmation under penalty of perjury:
1. I am the petitioner in the above-captioned action, and I respectfully submit this affirmation in response to the Court's Order dated March 11, 2005.
2. My habeas corpus petition against GLENN S. GOORD should not be dismissed for failure to exhaust state remedies because ____
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