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Springer v. Giambruno

United States District Court, E.D. New York
Nov 1, 2004
Case No. 04 CV 1730 (FB) (E.D.N.Y. Nov. 1, 2004)

Opinion

Case No. 04 CV 1730 (FB).

November 1, 2004

ALFONSO SPRINGER, Pro Se, Attica, New York, for the Petitioner.

CHARLES HYNES, ESQ., District Attorney, Kings County, JOYCE SLEVIN, ESQ., Assistant District Attorney, Brooklyn, New York, for the Defendants.


MEMORANDUM AND ORDER


Pro se petitioner Alfonso Springer ("Springer") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his convictions in the New York Supreme Court, Kings County, for criminal possession of a controlled substance and drug paraphernalia. Springer claims that an indictment that charged him with the same crimes as a prior felony complaint, which had been dismissed without prejudice, violated the Double Jeopardy Clause and his right to due process. For the reasons set forth below, the Court dismisses his petition without prejudice.

Though not asserted in Springer's pro se petition, the Court has jurisdiction because Springer was sentenced in the Eastern District of New York. See 28 U.S.C. § 2241(d).

I.

Springer first raised this double jeopardy claim in a petition seeking a writ of habeas corpus in state court. The state court held that a habeas petition was the wrong procedural vehicle to raise the claim and dismissed it without prejudice. See Springer v. Griambruno, No. 03-1854 ( N.Y.Sup.Ct. July 30, 2003). Subsequently, Springer filed a direct appeal of his judgment of conviction, in which he raised numerous other grounds for relief. Resp't's Aff. in Opp'n To Pet. for a Writ of Habeas Corpus, at 6. His direct appeal is currently pending before the Appellate Division, Second Department. Id.

II.

It is well settled that "federal habeas relief is not available unless the [Springer] has exhausted the remedies available in the courts of the State." Jones v. Keane, 329 F.3d 290 (2d Cir. 2003) (citing 28 U.S.C. § 2254(b)(1)(A)). "Exhaustion requires a petitioner fairly to present the federal claim in state court." Id. A claim, although presented to a state court, is not exhausted where, as here, a petitioner used the incorrect procedural vehicle. See Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985) ("[B]ecause [the petitioner] used the wrong procedural vehicle, the state courts never had a fair opportunity to pass on his claim."). Springer's double jeopardy claim, therefore, is unexhausted.

Recognizing that Springer's claim is unexhausted, the State expressly waived the exhaustion requirement. Resp't's Mem. of Law, at 3. Nonetheless, with respect to Springer's unexhausted claim, the Court may either (1) deny it on its merits, see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002) ("A district court also may . . . deny a petition on the merits even if it contains an unexhausted claim."), or (2) dismiss the claim without prejudice. See Granberry v. Greer, 481 U.S. 129, 131-32 (1987) (The state's waiver of the non-exhaustion defense does not bar the court from considering the issue of exhaustion).

If the Court denied his petition on the merits, Springer's ability to raise his other claims, which are currently pending in the state court on direct appeal from his conviction, in a second federal habeas petition would be jeopardized. Pursuant to 28 U.S.C. § 2244(b)(3)(a), "[b]efore a second or successive application . . . is filed in the district court, the applicant [must] move in the . . . court of appeals for an order authorizing the district court to consider the application." See Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) ("Second or successive applications may be heard only if they involve newly discovered evidence of a potentially dispositive nature, or a new and retroactive rule of constitutional law." (citing 28 U.S.C. 2244(b))).

CONCLUSION

Although this claim appears to lack merit, Springer's other claims pending on direct appeal may warrant federal habeas relief. The Court dismisses his petition without prejudice to permit Springer to exhaust this and other claims pending in the Appellate Division. Moreover, the Court cautions Springer that any future habeas petition should include all possible claims for federal habeas review to avoid having subsequent claims treated as a successive petition.

SO ORDERED.


Summaries of

Springer v. Giambruno

United States District Court, E.D. New York
Nov 1, 2004
Case No. 04 CV 1730 (FB) (E.D.N.Y. Nov. 1, 2004)
Case details for

Springer v. Giambruno

Case Details

Full title:ALFONSO SPRINGER, Petitioner, v. MICHAEL GIAMBRUNO, Superintendent…

Court:United States District Court, E.D. New York

Date published: Nov 1, 2004

Citations

Case No. 04 CV 1730 (FB) (E.D.N.Y. Nov. 1, 2004)