Opinion
00 Civ. 3798 (RWS)
June 19, 2002
Joel Hirschhorn, Esq., Hirschhorn Bieber, Coral Gables, FL, Attorney for Petitioner.
Robert M. Morgenthau, District Attorney of New York County, Hilary Hassler, Assistant District Attorney, New York, NY, Attorney for Respondent.
OPINION
The District Attorney of New York County has moved by letter to dismiss the amended habeas corpus petition of petitioner Paul Ruine ("Ruine") for failure to exhaust his claim of ineffective assistance of counsel. For the reasons set forth below, the motion is granted.
Prior Proceedings
On June 25, 1998, Ruine, a retired New York City police officer, was sentenced to a term of 15 years to life imprisonment following his jury trial conviction for second degree murder. The judgment of conviction was affirmed on February 4, 1999, and leave to appeal to the New York Court of Appeals was denied on May 19, 1999. On May 17, 2000, Ruine filed a post-conviction motion to vacate the judgment in the New York County Supreme Court pursuant to New York Criminal Procedure Law ("CPL") § 440.10, and filed a 28 U.S.C. § 2254 petition in the Southern District of New York. On October 17, 2000, this Court, following submissions by respective counsel, dismissed the § 2254 petition without prejudice, on the ground that the petition contained unexhausted claims.
On July 12, 2001, the New York Supreme Court, Trial Term, denied Ruine's CPL § 440.10 motion. The court reached the merits of all issues raised, except for certain aspects of Ruine's ineffective assistance of counsel claim. With respect to that claim, the court held that it could not consider certain aspects of the claim of ineffective assistance of counsel because Ruine did not expressly execute a full waiver of the attorney-client privilege. Subsequently, Ruine filed a pro se notice for leave to appeal to the Appellate Division, First Department, which was denied on October 9, 2001. The New York Court of Appeals dismissed Ruine's efforts at further review on November 14, 2001.
By notice of motion filed on or about October 30, 2001, Ruine pro se moved before Justice Herbert Altman for reconsideration of his July 12, 2001 order denying Ruine's § 440.10 motion.
In his motion for reconsideration, Ruine expressly waived his right to counsel. With the waiver in hand, the People submitted an affirmation and accompanying memorandum of law, responding to the merits of Ruine's claim and setting forth factual assertions by Ruine's trial counsel in opposition to Ruine's claims of misconduct and malfeasance. In a letter dated January 7, 2002, Justice Altman, through his law secretary, asked Ruine to respond "as directly and specifically as possible" to the allegations of fact made by his trial counsel.
On January 8, 2002, Ruine, by newly-retained counsel, filed the instant petition for a writ of habeas corpus, including an ineffective assistance of counsel claim. By letter to Justice Altman dated January 31, 2001, Ruine pro se declined to respond to the allegations of his trial attorney contained in the People's response, and asked to withdraw his motion for reconsideration in its entirety. By order dated February 7, 2002, Justice Altman wrote that because Ruine was "withdrawing his motion seeking reargument and renewal of his CPL 440.10 motion," the motion would be "withdrawn and marked off the calendar."
The letter motion of the District Attorney to dismiss for failure to exhaust Ruine's ineffective assistance of counsel claim was heard and marked fully submitted on April 17, 2002.
The Ineffective Assistance of Counsel Claim Must Be Exhausted
Ruine cannot seek relief in this habeas corpus proceeding as long as the ineffective assistance of counsel claim remains a part of the petition. A petitioner in state custody may not raise a claim in a federal habeas corpus proceeding unless both the legal and factual basis supporting it have been fairly presented to the state courts by means of an appropriate procedural vehicle. See 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Dave v. Attorney Gen. of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). This exhaustion requirement is excused only if there is no available procedure for the petitioner to obtain review of his claim in the state courts, see 28 U.S.C. § 2254(b)(1)(B)(i), or if any state procedure available would be ineffective under the circumstances. See 28 U.S.C. § 2254(b)(1)(B)(ii). The burden of demonstrating exhaustion of state remedies lies with the petitioner. See Colon v. Johnson, 19 F. Supp.2d 112, 119-20 (S.D.N.Y. 1998).
Here, Ruine's state court motion for reconsideration, and Justice Altman's letter inviting Ruine to address his trial attorney's assertions of fact, demonstrate that there remains an available state court remedy. If Ruine seeks to press his ineffective assistance of counsel claim, he must renew his § 440.10 motion before Justice Altman. At this juncture, Ruine cannot demonstrate that resort to the state court remedy would be futile. See LaBruna v. United States Marshall, 665 F.2d 439, 442 (2d Cir. 1981). Indeed, exhaustion requires the petitioner to present his claim to the state, "even if the availability of state collateral relief is not utterly clear." Hoover v. New York, 607 F.2d 1040, 1042 (2d Cir. 1979).
Ruine has appropriately raised a concern that, if he is required to exhaust his ineffective assistance of counsel claim in state court, his petition for federal habeas corpus relief may be in jeopardy due to the statute of limitations requirements of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Under AEDPA, a defendant has one year after the state court proceedings become final in which to challenge his conviction in a federal habeas petition. Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001). In Ruine's case, the statute of limitations period began to run from May 19, 1999, the date on which his judgment became final on direct review in the New York state courts. The clock continued to run until May 17, 2000, leaving Ruine only two days before his petition would be time barred.
In Zarvela, the Court of Appeals held that district courts must stay a petition pending exhaustion of unexhausted claims "where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)). Accordingly, because dismissal of Ruine's petition in its entirety would jeopardize the timeliness of his petition, the petition will be stayed pending exhaustion of Ruine's ineffective assistance claim. The stay is conditioned, however, on (i) Ruine's prompt filing, within thirty days of this decision, of a motion in state court to exhaust his claim of ineffective assistance, and (ii) a request in this Court to renew his petition, within thirty days after the state courts have completed their review of his claims.
Conclusion
For the foregoing reasons, Ruine's claim of ineffective assistance of counsel is dismissed and the balance of his petition is stayed. The stay is conditioned on Ruine seeking relief in state court on the remaining aspects of his ineffective assistance of counsel claim within thirty days of this opinion, and moving to reopen this claim before this Court within thirty days of exhausting the state court remedies.
It is so ordered.