Opinion
20 Civ. 5469 (NSR)(PED)
02-17-2022
ANGEL DIAZ, Petitioner, v. WILLIAM F. KEYSER., Respondent.
HONORABLE NELSON STEPHEN ROMAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
PAUL E. DAVISON. U.S.M.J.
I. INTRODUCTION
Angel Diaz (“Petitioner”) was convicted on August 15, 1990 of two counts of murder in the second degree, two counts of robbery in the first degree, and lesser related counts by jury trial in New York Supreme Court, Bronx County (Antonio Brandveen, J.). [Dkt. 2.] He was sentenced to an aggregate prison term of 38 % years to life which he is currently serving at the Sullivan Correctional Facility in Sullivan County, New York. [AZ] Petitioner, proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 seeking release based on the presence of CO VID within Sullivan Correctional Facility. [Id. ] The Petition comes before me pursuant to an Order of Reference entered March 15, 2021. [Dkt. 14.] For the reasons that follow, I respectfully recommend that Your Honor DENY the Petition.
On October 1, 2021, Petitioner filed an application to appoint counsel. [Dkt. 19.J On December 14, 2021 and December 20, 2021, Petitioner also filed motions for a hearing. [Dkts. 31, 32.] 1 deny those motions in a contcmporancously-filed order.
II. BACKGROUND
The information in tills section is taken from the Petition [Dkt. 2] and Respondent's Answer with attached exhibits [Dkts. 28, 29], as well as Petitioner's Reply [Dkt. 32].:
In 1988, Petitioner, along with four co-defendants, murdered the former employer of one of the co-defendants.; After murdering the former employer, they used his house keys to enter his home and held his wife and daughter captive while they rifled through his house for property to steal. On August 15, 1990, a juiy found Petitioner guilty of two counts of murder in the second degree, two counts of robbery in the first degree, four counts of robbery m the second degree, three counts of burglary in the first degree, burglary in the second degree, and conspiracy in the fourth degree. Petitioner was sentenced to an aggregate prison term of 38 1/3 years to life.
B. Procedural Background
1. State Habeas Petition
On July 4, 2020 the Supreme Court for Sullivan County received Petitioner's pro se state habeas petition under CPLR § 70. [Dkt. 29-2 at 1.] Petitioner filed the state petition against Respondent. [Id. ] In his state petition, Petitioner brought a conditions of confinement claim and argued that the Respondent demonstrated “deliberate indifference” in response to COVID. [Id. at 2-3.] For relief, Petitioner requested that he be released. [Id. at 3.] On August 17, 2020, Respondent moved to dismiss Petitioner's state petition. [Id. at 12.] By decision dated August 26, 2020, the Supreme Court granted Respondent's motion to dismiss. [Id. at 40.] The court held that these issues were addressed in People ex re. Carroll v. Keyser, 125 N.Y.S.3d 484 (App. Div. 2021) and that in that case the Appellate Division, Third Department, held that they were “an insufficient basis for release.” [Id.]
By way of a brief that was received on November 3 0, 2020, Petitioner moved to appeal the Sullivan County Supreme Court's decision. [AZ at 41-50.] Respondent opposed Petitioner's appeal on February 9, 2021. [Dkt. 51-68.] By memorandum and order dated April 1, 2021, the Appellate Division affirmed the Supreme Court's decision. People ex rel. Diaz v. Keyser, 141 N.Y.S.3d 729 (App. Div. 2021). The Appellate Division considered Petitioner's circumstances (i.e,, his age and physical condition), and found that Petitioner “failed to meet his burden of demonstrating that his detention at [Sullivan Correctional Facility] was illegal or unconstitutional.” Id. at 729.
By letter dated April 4, 2021, Petitioner filed for leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 29-2 at 117, Dkt. 29-3 at 1.] Respondent filed a brief in opposition on May 13, 2021. [Dkt. 29-3 at 2-10.] On September 2, 2021, the Court of Appeals denied leave to appeal. People ex rel. Diaz v. Keyser, 173 N.E.3d 427 (2021).
2. Proceedings Before this Court
On July 3, 2020, Petitioner filed the instant petition. [Dkt. 1 at 17.] Petitioner argues that COVID was present in Sullivan Correctional Facility, and that Respondent failed to respond accordingly and implement procedures and practices as recommended by the Centers for Disease Control and Prevention. [Id. at 2-6.] Petitioner further argues that due to his “high blood pressure and morbid obesity” he was at an increased risk of “serious harm, or even death” if he contracted COVID. [Id. at 2.] On October 23, 2020, Respondent filed a motion to dismiss, arguing that the petition should be dismissed because Petitioner's claim was not cognizable in habeas and because Petitioner failed to exhaust his state proceedings. [Dkt. 10.] By letter dated October 27, 2020, Petitioner requested the court to stay his petition for 90 days so that he could exhaust his state habeas petition. [Dkt. 11.] On November 18, 2020, Your Honor granted Petitioner's request to stay the action. [Dkt. 13.] By letter September 7, 2021, Petitioner requested that the stay be lifted as the Court of Appeals had denied his motion for leave to appeal. [Dkt. 16.] On September 20, 2021, Your Honor lifted the stay. [Dkt. 17.] By papers dated September 26, 2021, Petitioner requested that counsel be appointed to his case. [Dkt. 19.] On November 22, 2021, Respondent opposed Petitioner's petition, arguing that Petitioner's claim was not cognizable in habeas, and that even if the Court did proceed to the merits, Petitioner had not met his burden to overcome the state court's holding. [Dkt. 28.] By way of papers dated November 30, 2021, Petitioner filed his Traverse. [Dkt. 32.]
Under the so-called “mailbox rule,” a pro se petitioner's filings are deemed “filed” on the date on which they are delivered to prison officials for mailing. See Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001). Therefore, the Petitioner is deemed to have been filed on July 3, 2020, the date on which Petitioner signed the Petition and delivered it to prison officials for mailing.
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). A federal district court may review 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 the Anti-Terrorism and and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas application “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2).
Submissions provided by a petitioner proceeding pro se must be interpreted liberally to raise the strongest arguments they suggest. See, e.g., Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020). Nonetheless, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotations omitted).
IV. ANALYSIS
Petitioner argues that the Respondent failed to implement procedures that would ensure the safety of the prisoners at Sullivan Correction Facility in light of CO VID. Petitioner further argues that his risk of serious harm or death in the event that he catch COVID is elevated due to his high blood pressure and morbid obesity. [Dkt. 1 at 2] Respondent argues that Petitioner's claim is not cognizable in habeas, because he is challenging his “conditions, not the fact or length, of his confinement” and as a result, “a § 1983 civil rights complaint is the appropriate vehicle to address petitioner's claim[.]” [Dkt. 28 at 19.] Courts in this Circuit are divided on how to answer the question of whether a § 2254 habeas petition or a § 1983 action is the appropriate vehicle for a petitioner to raise a claim regarding their conditions of confinement in light of CO VID, and seeking release from custody a form of relief. See, e.g, Lithgow v. Keyser, 2021 WL 4200722, at *3 (S.D.N.Y, Aug. 16, 2021) (declining to decide petitioner's habeas petition on the question of the proper vehicle to raise the claim in light of the conflicting case law), report and recommendation adopted, 2021 WL 4391122 (S.D.N.Y. Sept. 24,2021); Acevedo v. Capra, - F.Supp.3d --, 2021 WL 2581258, at *5-10 (S.D.N.Y. 2021) (holding that petitioner's claim was a conditions of confinement claim and as a result should be brought under § 1983); Holloway v. Wolcott, 2020 WL 3172772, at *3 (W.D.N.Y. June 15, 2020) (finding that the unavailability of release as a form of relief under § 1983 foreclosed petitioner's § 1983 claim but that petitioner could proceed under a § 2254 habeas petition).
To the extent that Petitioner's other filings purport to raise additional arguments attacking the validity of his underlying conviction and sentence, I note that the Second Circuit denied Petitioner leave to file a successive § 2254 petition. [Case No. 99 Civ. 1085 (DAB), Dkt. 21.] In any event, it is not appropriate to raise additional claims at this juncture. See Parker v. Smith, 858 F.Supp.2d 229, 233 n.2 (N.D.N.Y. 2012) (“To the extent that petitioner's traverse could be read to raise new arguments that are not in his petition, they will not be considered because a traverse or reply is not the proper pleading in which to raise additional grounds for habeas relief.”)
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F,3d 76 (2d Cir. 2009) (per curiam).
In Acevedo, then-Chief Judge McMahon relied on the Second Circuit's holding in Fielding v. LeFevre, 548 F.2d 1102 (2d Cir. 1977). In Fielding, the petitioner sought adequate psychotherapy in prison to assist with the treatment of his pedophilia and raised it as a habeas claim. 548 F.2d at 1108. The Second Circuit held that “the proper remedy is a suit under 42 U.S.C. § 1983 to compel the state to afford prisoners access to psychotherapy.” Id., Petitioner also argued that because he was a child sex offender he would be especially targeted and subject to attack, and that the state would do nothing to intervene. Id. Similarly, the Second Circuit held “since we do not question that conduct like this can be prevented, the proper remedy again is not release, but a suit under 42 U.S.C. § 1983.” Id. at 1109. In light of the Second Circuit's reasoning, the court in Acevedo held that “when a prisoner challenged the conditions of his confinement he must do so in an action under 42 U.S.C. § 1983.” 2021 WL 2581258, at * 10. The court noted the tension between what the claim is challenging and the remedies available for that claim, and reasoned that the Second Circuit in Fielding “focused on the nature of Fielding's complaint” and elected to do the same. Id. at *7-8.
I am persuaded by the court in Acevedo's reasoning. I similarly conclude, and respectfully recommend Your Honor conclude, that Petitioner's claim is not cognizable in habeas and that it must instead be brought under 42 U.S.C. § 1983. I recognize that Acevedo is presently before the Second Circuit. See Acevedo v. Capra, No. 21-1822, Dkt. 26. Should the Second Circuit reach a different conclusion than the one outlined in this Report and Recommendation, I respectfully request that Your Honor remand the case to me for further analysis.
V. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Your Honor conclude, that the Petition for a Writ of Habeas Corpus be denied. I recommend that no certificate of appeal ability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Nelson Stephen Roman, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Roman.