Opinion
01 Civ. 2174 (AGS) (GWG)
January 29, 2002
REPORT AND RECOMMENDATION
On March 18, 1997, a judgment of conviction was entered in the Supreme Court, Bronx County, against Jermaine L. Estwick, the petitioner in this action for a federal writ of habeas corpus. See Brief for Defendant-Appellant Jermaine Estwick, dated February 1999 (reproduced as Exhibit 1 to Respondent's Affidavit in Opposition to Petition for Habeas Corpus, dated October 16, 2001 (hereinafter "Respondent's Opposition")) at 1. Estwick was convicted, after a jury trial, of Murder in the Second Degree (New York Penal Law § 125.25[1]) and Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), and was sentenced to 25 years-to-life imprisonment for the murder conviction and 5-to-15 years imprisonment for the weapons conviction. Id. Estwick is currently incarcerated at the Auburn Correctional Facility in Auburn, New York.
State Court Proceedings
Estwick appealed his conviction to the Appellate Division, First Department, through newly-assigned counsel. He argued on appeal that (1) the trial court had abused its discretion in refusing to appoint new trial counsel because there had been "a complete breakdown in communication" between himself and his attorney; and (2) that the trial court erred in imposing consecutive sentences for Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree because both convictions were based on the same acts. See id., Exhibit 1 at 15-25.
On November 23, 1999, the Appellate Division unanimously affirmed Estwick's conviction on the grounds that (1) the trial court properly exercised its discretion in denying Estwick's request for a substitution of counsel because he had not established "good cause" for such substitution; and (2) the consecutive sentences were "properly imposed." See People v. Estwick, 266 A.D.2d 123 (1st Dep't 1999).
In a letter dated December 21, 1999, Estwick, through counsel, requested leave to appeal to the New York Court of Appeals on all issues raised in his brief to the Appellate Division. See Respondent's Opposition at 3. On March 13, 2000, the Court of Appeals denied Estwick's application for leave to appeal. See People v. Estwick, 94 N.Y.2d 918 (2000).
On November 28, 2000, Estwick moved, pro se, to vacate his conviction pursuant to Criminal Procedure Law ("CPL") § 440.10. In this motion, Estwick claimed that (1) his sentence was illegal and harsh; (2) his trial counsel was ineffective for failing to "put the effort in working with [him]" to suppress his confession; and (3) his confession was illegally obtained. See Notice of Pro Se Motion to Vacate Judgment, dated November 28, 2000 (reproduced as Exhibit 4 to 2 Respondent's Opposition).
On February 21, 2001, the Supreme Court, Bronx County, issued a decision denying Estwick's § 440.10 motion in its entirety on the grounds that (1) Estwick's sentencing claim was procedurally barred pursuant to § 440.20(2) both because this claim was raised and decided on the merits on his direct appeal and because the claim was barred under § 440.10(2)(d) as a claim relating solely to sentence and not to the validity of the conviction; (2) Estwick's claim as to the admissibility of his confession was procedurally barred because he could have raised that claim on direct appeal but did not; and (3) Estwick's ineffective assistance of counsel claim was barred because he could have raised it on direct appeal and did in fact implicitly raise aspects of the claim on direct appeal. See People v. Estwick, Index No. 8170/94 (Sup.Ct. Bronx Cty. Feb. 21, 2001) (reproduced as Exhibit 6 to Respondent's Opposition) at 1-4. In addition, the court decided that even if Estwick's ineffective assistance of counsel claim were to be decided on the merits, it would still deny the § 440.10 motion. Id. at 2. In making this determination, the court found that there was nothing in the record to support Estwick's "self-serving allegations" that he received "less than meaningful representation" and also found that his counsel's performance was consistent with that of a "reasonably competent attorney." Id. at 3.
Respondent served Estwick with a Notice of Entry pursuant to New York Civil Practice Law and Rules § 5513(b) on February 27, 2001, advising him of the adverse decision. Respondent's Opposition, ¶ 13; Exhibit 7. Pursuant to CPL § 460.10(4)(a), Estwick had 30 days from the date on which he received the Notice of Entry to seek leave to appeal the denial of the CPL § 440.10 motion to the Appellate Division. It is undisputed that Estwick has not sought leave to appeal the denial of his § 440.10 motion.
The Instant Petition
Estwick's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (hereinafter "Habeas Petition") is dated December 18, 2000, and is stamped "received" by the Pro Se Office of this Court on January 23, 2001. It was docketed on March 14, 2001. Estwick's petition lists four grounds for relief: (1) he was denied effective assistance of trial counsel because his counsel failed to communicate with him in preparation for trial and did not represent him "to her ability;" (2) he was given an "illegal harsh" sentence; (3) his confession was illegally obtained because he was the victim of "yelling and threats"; and (4) his confession was the product of a custodial interrogation without Miranda warnings. Estwick concedes that Grounds 3 and 4 were not presented in his direct appeal. See Habeas Petition, ¶ 13. The respondent opposed the petition by an affidavit filed October 22, 2001. Estwick has not responded to this affidavit.
DISCUSSION
Exhaustion of Claims Raised in the Section 440.10 Motion
In his opposition to the Habeas Petition, the respondent argues that the petition contains unexhausted claims and therefore should be dismissed. Respondent's Opposition at 11-12. The basis for this argument is that Estwick never sought leave to appeal the denial of his § 440.10 motion to the Appellate Division. Under 28 U.S.C. § 2254(b)(1)(A), a claim presented to a habeas court must first be exhausted in the courts of the State. See Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990) (claims raised in § 440.10 motion are not exhausted unless petitioner seeks leave to appeal any denial of the motion).
Despite petitioner's failure to exhaust, the respondent contends that this Court "need not 4 require petitioner to go back to state court to further present this claim." Respondent's Opposition at 12. Instead, the respondent urges that because the 30-day time period to seek leave to appeal from the § 440.10 motion has expired, see CPL § 460.10(4)(a), this Court should deem the claim exhausted but forfeited for habeas review. Respondent's Opposition at 12.
The respondent is correct that some of Estwick's claims identified as grounds for this petition were not raised in his direct appeal and thus are unexhausted. As was pointed out by the Supreme Court in its decision denying the § 440.10 motion, the claims regarding his confession (Grounds Three and Four in the Habeas Petition) were never raised at all. The question of exhaustion is not so cut-and-dried with respect to Grounds One and Two — Estwick's complaints regarding trial counsel and his sentence. These claims are not clearly the same as those that were raised on his direct appeal. In its decision on the § 440.10 motion, however, the State court determined that the sentencing claim (Ground Two of the Habeas Petition) was clearly raised on direct appeal and that the complaint regarding counsel was not clearly raised. See Respondent's Opposition, Exhibit 6 at 1-2 (claim regarding sentence was "raised and decided on [Estwick's] direct appeal"); id. at 2 (ineffective assistance claims were only "to some extent" raised on direct appeal). Accordingly, this Court will defer to that ruling and conclude that only Claim Two is exhausted. Grounds One, Three and Four, by contrast, remain unexhausted.
In some instances where a petitioner has failed to exhaust a claim, that claim may be deemed to be exhausted if there is no possibility of exhausting the claim in State court because of a procedural default. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997 (habeas claim deemed exhausted where petitioner had failed to raise claim in state court and was procedurally barred from doing so); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.) (habeas claims deemed 5 exhausted where petitioners procedurally defaulted on claims in state court), cert. denied, 514 U.S. 1054 (1995). The Second Circuit has permitted such claims to be deemed exhausted on the theory that because the petitioner had already procedurally defaulted on his claims, it would be "fruitless" to require the petitioner to pursue the claim in State court. Bossett v. Walker, 41 F.3d at 829; accord Reyes v. Keane, 118 F.3d at 139.
Of course, the same procedural default prevents the habeas court from addressing the merits of the defaulted claims. See, e.g., Bossett, 41 F.3d at 829.
With respect to the failure to seek leave to appeal the denial of a § 440.10 motion, however, the Second Circuit has squarely held that such a claim cannot be deemed exhausted, and must instead be dismissed. See Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990). In Pesina, the petitioner had presented a claim on his direct appeal that had been exhausted. Subsequently, he brought a § 440.10 motion claiming that his sentence was excessive and that he was denied effective assistance of counsel. That motion was denied. Recognizing that the petition had both exhausted and unexhausted claims, the district court dismissed the petition in its entirety. On appeal, Pesina argued that because the statutory time limit for seeking leave to appeal the denial of his § 440.10 motion had passed, he had in fact exhausted the claims in that motion. In rejecting this argument, the Pesina court stated that:
While that statutory [limitations period] may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 motion. Until Pesina presents his claim to the highest court — whether or not it seems likely that he will be held procedurally barred — he has not exhausted available state procedures.913 F.2d at 54 (citation omitted). Accordingly, the Second Circuit affirmed the dismissal of the habeas corpus petition.
The rule in Pesina has properly been called into question by several district courts based on cases such as Bossett and Reyes, which make clear that it is pointless to require a habeas petitioner to return to state court to pursue a claim that is obviously procedurally barred. See, e.g., Rashid v. Kuhlman, 2000 WL 1855114, at *8 (S.D.N.Y. Dec. 19, 2000) (claims raised in unappealed § 440.10 motion deemed exhausted but procedurally barred because petitioner "no longer ha[d] any recourse to state review"); accord Thomas v. Greiner, 111 F. Supp.2d 271, 276-78 (S.D.N.Y 2000); Devito v. Racette, 1992 WL 198150, at *2-5 (E.D.N.Y. Aug 3. 1992).
This Court, however, cannot overrule the holding of Pesina. In an analogous context, the Supreme Court has held that "[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez v. Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); accord Butts v. City of New York Dept. of Housing Pres. and Dev., 990 F.2d 1397, 1409 (2d Cir. 1993). Based on this principle of stare decisis, this Court is constrained to follow the rule of Pesina. See Bloomer v. Costello, 2001 WL 62864, at *4-5 (S.D.N.Y. Jan. 24, 2001) (recognizing that the rule in Pesina has been undermined by later authority but holding that a district court is constrained to follow it). Thus, because Grounds One, Three and Four in the petition were raised initially in Estwick's unexhausted § 440.10 motion, they must be treated as unexhausted by this Court. Pesina, 913 F.2d at 53.
Treatment of "Mixed Petitions"
Where a petition contains both exhausted and unexhausted claims (commonly referred to as a "mixed" petition), this Court has discretion either (1) to dismiss the petition without prejudice to renewal after exhaustion of state court remedies or (2) to dismiss only the unexhausted claims and stay the exhausted claims contained in the petition with a requirement that the petitioner promptly pursue state court remedies and return to federal court. Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001).
While the Court has discretion to dismiss any unexhausted claims on the merits if such claims are deemed to be "hopeless," Jones v. Senkowski, 2001 WL 1230800, at *4 (2d Cir. Oct. 5, 2001), this issue has not been briefed or raised by either party and therefore this Court will not consider it.
A dismissal of the entire petition without prejudice, however, may result in any newly filed petition being dismissed because the time during which the petition was pending in federal court would not toll the statute of limitations under 28 U.S.C. § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 175 (2001). Thus, the Second Circuit has made clear that if "an outright dismissal could jeopardize the timeliness of a collateral attack," the Court must stay the petition. Zarvela, 254 F.3d at 380 (citation and internal quotation marks omitted). In the present case, Estwick's time to bring his exhausted sentencing claim, contained in Ground Two of his Habeas Petition, expired on June 11, 2001, one year plus ninety days after the Court of Appeals denied his application for leave to appeal. See Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Thus, the dismissal of the petition "could jeopardize the timeliness" of Estwick's habeas petition because any newly-field petition would be time-barred as to the exhausted claims. Accordingly, the Court must stay Estwick's exhausted claim pending his exhaustion of state remedies as to the other claims. Obviously, this ruling does not foreclose any arguments the respondent may make in the future in opposition to the claims raised in the § 440.10 motion, including any arguments that these claims are procedurally barred.
In a letter to the Clerk of this Court dated February 28, 2001, and attached to the Habeas Petition, Estwick states, inter alia, that based on the State trial court's disposition of his § 440.10 motion: "whatever is convenient for you please you have my consent to either: dismiss my habeas without prejudice or include this letter with my papers." However, as explained in Zarvela, a dismissal of his habeas petition in its entirety would result in any new petition being time-barred. 254 F.3d at 380. Because it is not clear that Estwick understands the consequences of a voluntary dismissal of his petition, the Court should not dismiss it.
If, however, Estwick wishes to withdraw his unexhausted claims from the petition (specifically, Grounds One, Three and Four), he is free to so inform the Court in writing. The Court will thereupon consider only Ground Two of the petition and Estwick will forfeit any federal court review of Grounds One, Three and Four (except in the unlikely event that he is granted permission to file a second petition under 28 U.S.C. § 2244(b)).
Conclusion
Grounds One, Three and Four of this petition for habeas corpus should be dismissed to permit Estwick to seek leave to appeal the denial of his § 440.10 motion. The case, consisting of the remaining claim (Ground Two), should then be stayed on the following two conditions:
1. Within 30 days of entry of the Order ruling on this matter, Estwick must file an application under CPL §§ 450.15(1), 460.10(4)(a) and 460.15 seeking leave to appeal the denial of his § 440.10 motion.
2. Within 30 days following either (a) the denial of Estwick's application for leave to appeal or (b) if leave to appeal is granted, an adverse decision on the merits of that appeal, Estwick must file an affidavit or declaration in this habeas case stating that his § 440.10 motion has been disposed of and that he wishes to terminate the stay of this case. Failure to comply with either deadline will result in Estwick being barred from presenting his § 440.10 claims as part of this or any other habeas corpus petition. See Zarvela, 254 F.3d at 381.