Opinion
23-CV-9186 (LTS)
01-08-2024
PAUL NILES, Petitioner, v. DISTRICT ATTORNEY ALVIN BRAGG, et al., Respondents.
ORDER
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner Paul Niles, who is proceeding pro se and currently incarcerated at the Central New York Psychiatric Center, has filed an application seeking the appointment of habeas corpus counsel, which he titles: “Affidavit in support of petitioner requesting appointment of counsel under forma pauperis status purs. to Title 18 § 3006(A)(2)(B) purs. to seeking relief under Title 28 U.S.C. § 2254.” (ECF 1, at 1.) In the application, he notes that he seeks to challenge his October 10, 2017 judgment of conviction, entered in the New York Supreme Court, New York County.
By order dated December 11, 2023, the Court granted Petitioner's request to proceed in forma pauperis (“IFP”). For the following reasons, the Court (1) designates Petitioner's submission as a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254; (2) grants Petitioner 60 days' leave to complete and file the attached Section 2254 form; (3) directs the Clerk of Court to dismiss from this action the named Respondents and add as the sole Respondent, the “Executive Director, Central New York Psychiatric Center,” under Rule 2(a) of the Rules Governing Section 2254 Cases; and (4) denies Petitioner's request for the appointment of habeas corpus counsel, without prejudice to renewal at a later stage.
Petitioner did not submit an IFP application with his application for the appointment of counsel. On November 14, 2023, the Court directed Petitioner to submit an IFP application or pay the filing fee. On December 6, 2023, the Court received Petitioner's IFP application.
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 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 § 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 Paul Niles seeks habeas corpus counsel to represent him in his Section 2254 proceedings. In his application, he indicates that he intends to assert several grounds, including challenges to both DNA evidence and testimony, prosecutorial misconduct, and ineffective assistance of counsel. He also indicates that he perfected his appeal, see People v. Niles, 200 A.D.3d 542 (2021), leave to appeal denied, 38 N.Y.3d 1189 (2022), and filed a motion to vacate his judgment under New York Criminal Procedure Law § 440.10, which was denied “November 2022.” (ECF 1, at 1.)
The Court of Appeals denied Petitioner leave to appeal on November 29, 2022. Niles, 28 N.Y.3d at 1189. Petitioner states that he filed a Section 440.10 motion, and that it was denied, but he does not state whether he appealed that denial to the New York State Supreme Court, Appellate Division.
Petitioner's application for counsel was notarized on October 11, 2023, and the Clerk's Office received it on October 16, 2023.
DISCUSSION
A. Designation of Application as Section 2254 Petition
Petitioner's application is construed as a petition for a writ of habeas corpus under Section 2254 because Petitioner seeks to challenge “the judgment of a State court . . . 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. 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); Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam); Cook v. New York State Div. of Parole, 321 F.3d 274, 282 (2d Cir. 2003). If Petitioner allows this action to proceed as a Section 2254 proceeding, this petition will be his one opportunity to challenge his conviction. If Petitioner does not inform the Court of his intent within sixty days, the application shall remain designated as a petition under Section 2254.
B. Leave to File an Amended Petition
Petitioner submitted an application for counsel in which he describes the grounds he intends to assert in a Section 2254 petition. The Court grants him leave to amend this submission so that it complies with Rule 2 of the Rules Governing Section 2254 Cases and so that he may describe in detail his exhaustion of his state court remedies.
1. Rule 2 of the Rules Governing Section 2254 Cases
A petitioner challenging his state court 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 notify both the Court and the respondent of the 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 does not specify all his grounds or the supporting facts for most his grounds. 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 it does not identify 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. Petitioner is advised that an amended petition completely replaces the original petition.
2. Exhaustion of State Court Remedies
Before filing a petition for a writ of habeas corpus under Section 2254, a petitioner must exhaust his 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 a 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 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. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
Petitioner's application and court records indicate that Petitioner perfected his direct appeal by appealing his conviction to the New York State Supreme Court, Appellate Division and seeking leave to appeal from the Court of Appeals. Thus, should Petitioner seek to raise the grounds raised in his direct appeal, it appears that he has exhausted those grounds. It is not clear, however, whether Petitioner exhausted the grounds raised in his Section 440.10 motion because he does not state whether he sought leave to appeal the denial of his motion from the Appellate Division. Accordingly, should Petitioner seek to raise the grounds raised in his Section 440.10 motion, he must describe each step he has taken to exhaust those grounds.
C. Proper Respondent in Section 2254 Petition
Rule 2 of the Rules Governing Section 2254 Cases states: “If the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody.” Petitioner currently is incarcerated at Central New York Psychiatric Center (“CNYPC”), pursuant to his October 10, 2017 conviction. Thus, the Executive Director of CNYPC is the proper respondent for this habeas corpus proceeding, and the Court directs the Clerk of Court to add the Director to this action as the Respondent. The Court also directs the Clerk of Court to dismiss the currently named Respondents.
The Court assumes for the purposes of this order that Petitioner is in custody pursuant to his state court conviction, even though he currently is incarcerated at a psychiatric center.
D. Application for Habeas Corpus Counsel
Petitioner has moved for the appointment of counsel pursuant to 18 U.S.C § 3006A. A court has discretion under the Criminal Justice Act (“CJA”) to appoint counsel for any person seeking relief under Section 2254 “[w]henever . . . the interests of justice so require and such person is financially unable to obtain representation.” 18 U.S.C. § 3006A. The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of Petitioner's Section 2254 petition, his application for counsel is denied without prejudice to renewal at a later date.
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.
The Court directs the Clerk of Court to dismiss from this action the named Respondents and, under Rule 2(a) of the Rules Governing Section 2254 Cases, add as the sole Respondent, the “Executive Director, Central New York Psychiatric Center.”
The Court denies Petitioner's request for the appointment of habeas corpus counsel, without prejudice to renewal at a later stage.
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 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.