Opinion
02 Civ. 9599 (TPG).
May 15, 2007
OPINION
This is a state habeas corpus petition under 28 U.S.C. § 2254. Respondents were requested to file an answer solely with respect to a Miranda claim. That answer has been submitted.
Petitioner was convicted after a non-jury trial of three counts of sexual abuse in the first degree and one count of endangering the welfare of a child. He was sentenced to concurrent prison terms of two years on the sexual abuse counts and one year on the endangering count.
Petitioner appealed to the Appellate Division, First Department. There were two grounds of appeal. The first was that the trial court erred in permitting a six-year old child to testify. The second was that the verdict was against the weight of the evidence because it rested mainly on the testimony of the child. The Appellate Division unanimously affirmed the conviction, holding that the child's testimony was properly received and that it provided a detailed, convincing account of defendant's sexual misconduct. Leave to appeal to the New York Court of Appeals was denied.
Petitioner has now completed his prison sentence and also completed a term of post-release supervision. He is now in a New Jersey prison pending the outcome of immigration proceedings.
When the habeas corpus petition was originally filed, it asserted the following claims. The first was that petitioner was improperly required to serve three years of post-release supervision following the completion of his prison sentence. The second was that his Miranda rights were violated when he gave a statement to the police. The third was that he was denied a fair trial because the court received the testimony of the child.
In responding to this court's request for an answer from respondents on the Miranda issue, the Bronx County District Attorney asserted (1) that petitioner had forfeited his Miranda claim by not raising it on the direct appeal; (2) that, to the extent that petitioner's Miranda claim might be deemed to rely on facts not on the appeal record, petitioner had failed to exhaust his state remedy by failing to file a motion under C.P.L. § 440.10; and (3) that there had been an adequate hearing on theMiranda issue prior to the trial with no indication that the resulting ruling was unreasonable as to the law or the facts. See 28 U.S.C. § 2254(d)(1).
Following the submission by respondents, petitioner filed a brief with a detailed response on the Miranda issue.
Discussion
The law is clear that a habeas corpus petitioner, challenging state court proceedings, must exhaust his state remedies as to all the habeas corpus claims. Otherwise, the petition will not be entertained. Rose v. Lundy, 455 U.S. 509 (1982).As to the Miranda claim, petitioner failed to assert his claim on his direct state court appeal, and under familiar law forfeited the Miranda claim. To the extent that he had any remaining rights to assert in a collateral proceeding, a motion was available to him under C.P.L. § 440.10. Petitioner seeks to excuse his failure to make such a motion by asserting that, by the time he was contemplating such a motion, he had completed his New York prison sentence and was held out of state during immigration proceedings. This excuse is entirely unavailing, particularly in view of the fact that now, while he is held in a New Jersey institution, he has filed a detailed brief about his alleged Miranda rights. The result is that petitioner has either forfeited, or failed to exhaust state remedies, with respect to his Miranda claim.
As to the claim that he was improperly subjected to a post-release period of supervision, petitioner has never sought to avail himself of a state remedy.
The petition is dismissed for either forfeiting or failing to exhaust state remedies.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
In respect to the in forma pauperis statute relating to appeal ( 28 U.S.C. § 1915(a)), it is certified that an appeal from this order would not be taken in good faith, because it would be frivolous.
SO ORDERED.