Opinion
24-CV-3135 (LTS)
08-26-2024
NIGEL FREDRICKS, Petitioner, v. COMSTOCK, Superintendent, Respondent.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner Nigel Fredricks, who is currently incarcerated at Coxsackie Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. On March 15, 2024, Petitioner was granted leave to proceed in forma pauperis (“IFP”). For the following reasons, the Court designates Petitioner's submission as a petition for a writ of habeas corpus under 28 U.S.C. § 2254, and grants him 60 days' leave to file an amended petition.
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 Section 2254 Cases, the Court has the authority to review and dismiss a Section 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 Section 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 originally filed this petition in the United States District Court for the Northern District of New York. Because it was unclear what exactly Petitioner was challenging, on April 3, 2024, that court directed Petitioner to file an affirmation clarifying his intentions. (ECF 15.) On April 11, 2024, the Northern District received from Petitioner a letter in which he referred to his “parole status being revoke[d on] May 20, 2022 without a new parole violation for a new charge that occurred in Rikers Island.”(ECF 17, at 1.) Petitioner also agreed that the case could be transferred to this court. On April 18, 2024, the Northern District transferred the action to this court. (ECF 18.)
The Court quotes from Petitioner's submissions verbatim. All spelling, grammar, and punctuation are as in the originals unless noted otherwise.
Petitioner brings this action using the Northern District's Section 2241 petition form. He asserts that on March 12, 2022, after his parole was revoked, he was sentenced in the Manhattan Supreme Court. (ECF 1, at 1.) Petitioner contends that the New York State Department of Corrections and Community Supervision (“DOCCS”) is improperly calculating his sentence under New York Penal Law § 70.30 - a statutory provision on how to calculate terms of imprisonment. Petitioner incorrectly refers to several civil cases that he had filed in federal courts as appeals of the alleged miscalculation of his sentence. For example, he indicates that a prior Northern District case and its appeal, Fredricks v. I.R.C. Entity D.O.C., No. 23-CV-0112 (N.D.N.Y. Sept. 19, 2023), appeal dismissed, No. 23-CV-7197 (2d Cir. June 18, 2024), were his first and second appeals of the issue he is raising in this habeas corpus petition. (ECF 1, at 2-3.) Petitioner further refers to a prior habeas corpus petition under 28 U.S.C. § 2254 that he filed in this court in 2022, Fredericks v. Warden Auburn C.F., No. 22-CV-3968 (LTS) (S.D.N.Y. Sept. 20, 2022), as a motion under 28 U.S.C. § 2255, in which he raised the same issues he brings in this action.(Id. at 4.)
In Fredricks v. I.R.C. Entity D.O.C., No. 23-CV-0112, Petitioner sought damages for alleged miscalculation of his sentence. The Northern District determined that Petitioner is barred under 28 U.S.C. § 1915(g), from filing any new federal civil action IFP while he is a prisoner, and the Second Circuit dismissed the appeal as “lack[ing] an arguable basis either in law or in fact.” Fredricks v. I.R.C. Entity D.O.C., No. 23-CV-0112 (N.D.N.Y. Sept. 19, 2023), appeal dismissed, No. 23-CV-7197 (2d Cir. June 18, 2024).
In Fredericks v. Warden Auburn C.F., No. 22-CV-3968 (LTS), Petitioner seemingly sought to challenge his state court conviction but did not set forth clear grounds for relief or show exhaustion of state court remedies. The Court, after granting Petitioner 60 days' leave to file an amended petition, dismissed the case because Petitioner did not file an amended petition as directed. Id., ECF 10.
Petitioner attaches to the petition handwritten statements, in which he contends that New York Penal Law § 70.30 is unconstitutionally vague, along with a copy of a 1947 Supreme Court of Florida's decision, Locklin v. Pridgeon, 158 Fla. 737 (Fla. 1947), which held that a statutory provision was unconstitutionally vague. (ECF 1, at 10-13.) In a statement captioned “Grounds Raised,” Petitioner writes,
According to [DOCCS] changes has been made to my time calculation by stateing Penal Law 70.30 of dedacting allmost four and half years but fail to indicate nothing been imposed by the judge and I've been revoke so it would be nearly impossible to owe allmost four and half years on P.R.S.(ECF 1-2, at 1.)
Petitioner seeks immediate release from DOCCS custody.
DISCUSSION
A. Designation of Application as Section 2254 Petition
The Court construes Petitioner's submission as a petition for a writ of habeas corpus under 28 U.S.C. § 2254 because his assertion that DOCCS miscalculated his state court sentence is a challenge to the execution of his sentence. The proper vehicle for such a challenge is a petition brought under Section 2254, not Section 2241. See Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 278-79 (2d Cir. 2003); see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (challenges to the validity of prison administrative actions that affect the fact or length of the state convicted prisoner's confinement are properly brought under Section 2254). If Petitioner does not want to pursue relief under Section 2254, he must notify the Court in writing within 60 days that he wishes to withdraw the application. See Castro v. United States, 540 U.S. 375, 383 (2003); Cook, 321 F.3d at 282. If Petitioner does not inform the Court of his intent within 60 days, the application shall remain designated as a petition under Section 2254.
B. Rule 2 of the Rules Governing Section 2254 Cases
A state prisoner must submit a petition that conforms to the Rules Governing Section 2254 Cases. Rule 2(c) 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 does not plainly 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. The Court therefore grants Petitioner 60 days' leave to complete the attached form and include each ground he intends to raise and the supporting facts for each ground.
C. Exhaustion of State Court Remedies
Before filing a petition for a writ of habeas corpus under Section 2254, a petitioner must exhaust all available state court remedies. 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 complete round of the 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. Att'y Gen., 696 F.2d 186, 191 (2d Cir. 1982)).
To exhaust the execution of a sentence, Petitioner must first challenge the decision administratively with DOCCS, and then file in a state court a petition under Article 78 of the New York Civil Practice Law and Rules. See, e.g., Wells v. Annucci, No. 19-CV-3841 (LLS), 2019 WL 2209226, at *3 (S.D.N.Y., May 21, 2019) (holding that to “exhaust the execution of a sentence, after challenging the decision administratively with DOCCS, Petitioner must file an Article 78 petition under New York Civil Practice Law and Rules.” (citing Velez v. Annucci, No. 10-CV-1485 (JKS), 2014 WL 316748, at *1 (N.D.N.Y. Jan. 28, 2014)); Castro v. Rivera, 69 A.D.3d 1000, 1000, (2010) (converting habeas corpus proceeding challenging sentence computation to an Article 78 proceeding). Petitioner must then appeal any adverse ruling on the Article 78 petition to the New York Supreme Court, Appellate Division. See Wells, 2019 WL 2209226, at *3; Castro, 69 A.D.3d at 1000. Should the Appellate Division affirm the decision, Petitioner must then seek leave to appeal from the New York Court of Appeals. See, e.g., Bottom v. Goord, 96 N.Y.2d 870, 870 (2001) (reversing Appellate Division affirmance of denial of an Article 78 proceeding, seeking recalculation of jail-time credit, as time-barred).
Generally, a state court habeas corpus petition would not be the proper vehicle to challenge a sentence computation when the prisoner is not entitled to immediate release from prison. See, e.g., People ex rel. Gonzalez v. Smith, 104 A.D.2d 725, 725 (1984).
Petitioner indicates in this petition that he has filed multiple federal court actions concerning the alleged computation error, but he does not allege facts suggesting that he filed an Article 78 petition in a state court or initiated any other action to appeal or challenge the computation of his sentence. Thus, he has not shown that he has fully exhausted his available state court remedies.
D. Leave to File an Amended Petition
The Court grants Petitioner leave to submit an amended petition within 60 days of the date of this order. Should Petitioner decide to file an amended petition, he must clearly and legibly state his grounds for relief and detail the steps he has taken to fully exhaust each ground for relief in the New York courts.Petitioner is advised that an amended petition completely replaces the original petition.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition be filed within one year of the latest of four specified dates. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
Petitioner is hereby notified that the Court finds that this application, notwithstanding its designation, should be construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. If Petitioner does not want to pursue relief under Section 2254, he may notify the Court in writing within 60 days that he wishes to withdraw the application. If Petitioner does not inform the Court of his intent within 60 days, the application shall remain designated as a petition under Section 2254.
The Court grants Plaintiff leave to file an amended petition. The amended petition must be submitted to the Clerk's Office within 60 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, which Petitioner should complete as specified above. Once submitted, the amended petition shall be reviewed for substantive sufficiency, and then, if proper, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied.
No answer shall be required at this time.
Because Petitioner has not at this time made a substantial showing of the 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Amended Petition
(Exhibit Omitted)