Opinion
22-CV-6028 (LTS)
09-19-2022
ABDOOL AZEEZ, Petitioner.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Petitioner Abdool Azeez, who is proceeding pro se, has filed an action, in affidavit form, challenging his conviction rendered in the New York State Supreme Court, Westchester County. He attaches to his affidavit a letter, in which he asks the court to provide him with a blank form for a petition for a writ of habeas corpus. This court's Clerk's Office opened the affidavit as a new civil action brought under 28 U.S.C. § 2254. On August 18, 2022, Petitioner paid the $5.00 filing fee. As set forth below, the Court directs Petitioner to complete the attached Section 2254 petition form, within 60 days of the date of this order.
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. 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)).
DISCUSSION
A. Rule 2 of the Rules Governing Section 2254 Cases
An individual who is incarcerated under a state court judgment of conviction and seeks to challenge that conviction 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.
Petitioner's submission concededly does not conform to the requirements of Rule 2(c), as Petitioner has requested a Section 2254 petition form so he may state his grounds for relief. Accordingly, the Court grants him leave to complete the attached Section 2254 petition form.
B. Exhaustion of State Court Remedies
Prior to bringing a Section 2254 petition, an individual who is incarcerated pursuant to a state court judgment must exhaust all available state remedies. See 28 U.S.C. § 2254(b); see also 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 a petitioner's confinement. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).
In order to exhaust any issues for purpose of habeas corpus review, Petitioner first must appeal his judgment of conviction to the New York State Supreme Court, Appellate Division. N.Y. Crim. P. L. § 460.70 (McKinney 2010). Should that court's decision adversely affect Petitioner, he should then seek leave to appeal to the New York Court of Appeals, the highest state court. Id. at § 460.20 (McKinney 2010); see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should Petitioner raise for habeas corpus relief any grounds raised in N.Y. Crim. P. L. § 440.10 motions and/or other collateral motions, he must show that those grounds have been completely exhausted 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).
The Court therefore directs Petitioner to complete the exhaustion section of the Section 2254 petition form in its entirety, including all dates he filed any appeals or post-conviction motions.
C. Leave to Amend 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 state his grounds for relief and detail the steps he has taken to exhaust those grounds fully in the New York courts. Petitioner must exhaust all available state court remedies in order to proceed with this Petition. See 28 U.S.C. § 2254(b)(1). Petitioner is advised that an amended petition completely replaces the original petition. Thus, Petitioner must include any facts he stated in his affidavit, if he would like the Court to consider those facts.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
The Court directs Petitioner to file an amended petition containing the information specified above. 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.
Because Petitioner has not at this time made a 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).
SO ORDERED.