Opinion
23-CV-9380 (LTS)
01-02-2024
JESUS TORRES, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner Jesus Torres is in pretrial detention in the Orange County Jail. In his original submission, written in letter form, Petitioner raised numerous alleged errors in his ongoing state court criminal proceedings.He sought release on bail, dismissal of the indictment, and other relief. (ECF 1 at 1-6, 10-14.) Petitioner further stated his intention to file a “civil suit” against the prosecutor, the judge, the jail, and the Legal Aid Society. (Id. at 7-8.) Attached to the pleading are copies of complaints that Petitioner filed against his criminal defense attorneys, a motion for recusal of the state court judge, articles about other criminal defendants and their sentences, and other documents in which Petitioner challenges the legality and fairness of his criminal proceedings. (Id. at 15-43.) The Court construed Petitioner's submission as a petition for habeas corpus, brought under 28 U.S.C. § 2241. By order dated October 26, 2023, the Court granted Petitioner leave to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).
The Court received Petitioner's undated submission on October 11, 2023. (ECF 1.)
Petitioner submitted this filing without paying the $5.00 fee for filing a habeas corpus petition or submitting an IFP application. By order dated October 26, 2023, the Court directed Petitioner to remedy this deficiency, which he did by submitting an IFP application on November 14, 2023.
Since filing his pleading, Petitioner has filed four letters, two additional IFP applications, a complaint, and an amended complaint. (ECF 3-4, 6-8, 9-10, 12.) Petitioner makes clear in the letters that he seeks to remove his state court criminal proceedings to this Court. (ECF 3, 4, 9, 10.) By way, of example, Petitioner asserts in one letter that he seeks “to change my felony case from state to federal [court], 28 U.S.C. § 1455,” and refers to the submission as a “notice of removal.” (ECF 4 at 2.)
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus from a person in custody challenging the legality of his detention on the ground that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Court has the authority to review the petition, and “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled [to such relief].” 28 U.S.C. § 2243. 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted); 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. Notice of removal
To remove a state court criminal action to a federal district court:
[a] defendant . . . shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short
and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.28 U.S.C. § 1455(a). A defendant removing a criminal action to a federal district court is generally required to file a notice of removal in the appropriate federal district court “not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier.” 28 U.S.C. § 1455(b)(1). The criminal defendant must file with the notice of removal “a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Id. “The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.” §1455(b)(3).
The removing defendant has the burden of establishing that a case is within the federal district court's removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). Because removal to a federal district court deprives the state court of jurisdiction, “federal courts construe the removal statute[s] narrowly, resolving any doubts against removability.” Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). If it clearly appears on the face of a notice of removal that removal of a criminal case is impermissible, the district court must summarily remand the action to state court. § 1455(4).
The ability to remove a criminal action to a federal district court is very limited. A criminal prosecution commenced in a state court against a federal officer or member of the armed forces for actions taken under the color of his or her office may be removed to federal court. 28 U.S.C. §§ 1442(a), 1442a. Criminal prosecutions commenced in a state court may also be removed if the defendant “is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States.” 28 U.S.C. § 1443(1).
Petitioner does not allege that he is a federal officer or member of the armed forces being prosecuted for actions taken under color of his office. He also does not allege that he cannot enforce, in his state court criminal proceedings, his civil rights. See Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (setting forth two-pronged test for removal of criminal prosecution where defendant is denied equal civil rights). Petitioner, therefore, has not demonstrated that there is any statutory basis for removal of his criminal proceedings.
Petitioner also has not complied with the procedural requirements for removal. The notice of removal does not plead facts showing that it was filed within 30 days of arraignment. Because the notice of removal does not allege a proper basis for removal, and does not comply with the procedural requirements for removal, removal would not be proper, and Petitioner's application is denied.
Ordinarily this Court would order the matter remanded to state court. See 28 U.S.C.§ 1455(b)(4). There is no indication, however, that Petitioner alerted the state court of the removal, and thus remand is not required.
B. Habeas corpus relief
1. Petition under 28 U.S.C. § 2241
Because Petitioner, who is a pretrial detainee, brings this petition to challenge his detention and obtain various forms of relief in his pending criminal proceedings, this petition must be construed as a petition for a writ of habeas corpus relief under 28 U.S.C. § 2241. A prisoner in state custody generally must challenge his incarceration in a petition under 28 U.S.C. § 2254, but relief in a petition under 28 U.S.C. § 2241 may be available to a state pretrial detainee challenging his custody as unlawful under the Constitution or federal law. See Robinson v. Sposato, No. 11-CV-0191 (SJF), 2012 WL 1965631, at *2 (E.D.N.Y. May 29, 2011); see also Hoffler v. Bezio, 831 F.Supp.2d 570, 575 (N.D.N.Y. 2011), aff'd on other grounds, 726 F.3d 144 (2d Cir. 2013); Marte v. Berkman, No. 11-CV-6082 (JFK), 2011 WL 4946708, at *5 (S.D.N.Y. Oct. 18, 2011), aff'd on other grounds sub nom., Marte v. Vance, 480 Fed.Appx. 83 (2d Cir. 2012) (summary order).
Because of the Antiterrorism and Effective Death Penalty Act's (“AEDPA”) limitations on second or successive petitions, see 28 U.S.C. § 2244(a), a federal district court has limited power “to sua sponte convert post-conviction motions [to habeas corpus petitions] without giving the petitioner notice and an opportunity to decline the conversion or withdraw the motion.” Simon v. United States, 359 F.3d 139, 140 (2d Cir. 2004); see Castro v. United States, 540 U.S. 375, 383 (2003). This notification requirement is based upon a concern “that a prisoner may be unaware that such a proposed conversion can trigger the AEDPA's gate-keeping limitations.” Simon, 359 F.3d at 139. As this action challenges Petitioner's pretrial detention or ongoing criminal proceedings, it is not a postconviction action or motion implicating the AEDPA's gate keeping requirements, and therefore, there is no need to notify Petitioner of the recharacterization and obtain his consent before considering his claims.
2. Abstention pending final judgment.
Although Section 2241 provides a narrow window for a state detainee to challenge his pretrial detention, a Section 2241 petition cannot be used to “permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court.” Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 493 (1973); see also Allen v. Maribal, No. 11-CV-2638 (KAM), 2011 WL 3162675, at *1 (E.D.N.Y. 2011) (noting that federal habeas corpus is not to be converted into a “pretrial motion forum for state prisoners” (citing York v. Ward, 538 F.Supp. 315, 316 (E.D.N.Y. 1982))). In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court held that a federal court may not enjoin a pending state-court criminal proceeding in the absence of special circumstances suggesting bad faith, harassment, or irreparable injury that is both serious and immediate. See Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973) (citing Younger, 401 U.S. 37); see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S 69, 77-78 (2013) (“Younger exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.”). A pending state prosecution ordinarily provides the accused “a fair and sufficient opportunity for vindication of federal constitutional rights.” Kugler v. Helfant, 421 U.S. 117, 124 (1975); see also Baker v. Sup. Ct. for New York, No. 12-CV-4750 (BMC), 2012 WL 4739438, at *2 (E.D.N.Y Oct. 3, 2012).
As Petitioner brings this petition seeking relief in his ongoing criminal proceedings, the Court must consider whether it must abstain from reviewing some or all of his constitutional claims until judgment is final.
Courts have found special circumstances warranting habeas corpus relief before trial in at least two situations. First, pretrial habeas corpus relief may be appropriate where the petitioner's rights cannot be fully vindicated at the conclusion of trial. For example, courts have declined to abstain from considering double jeopardy claims in pretrial habeas corpus petitions because the right to avoid the ordeal of undergoing multiple trials cannot be vindicated after the second trial. See, e.g., Drayton v. Hayes, 589 F.2d 117, 121 (2d Cir. 1979) (“The very constitutional right claimed . . . would be violated if [the petitioner] were compelled to raise his double jeopardy claim after the second trial.”).
Second, courts considering whether to abstain from hearing a constitutional challenge while criminal proceedings are pending have examined whether the claim seeks relief that is collateral to the criminal proceeding. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 108 (1975) (holding that federal court correctly declined to abstain from hearing claims that prisoners were being detained without probable cause hearings because “[t]he order to hold preliminary hearings could not prejudice the conduct of the trial on the merits,” and was directed “only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution”); see also Braden, 410 U.S. at 493 (habeas corpus petition could be heard before trial where petitioner sought to be brought speedily to trial and “made no effort to abort a state proceeding, or to disrupt the orderly functioning of state judicial processes”). But see Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006) (holding in an action under 42 U.S.C. § 1983 that interference with state bail proceedings would violate principles of Younger); see also Jordan v. Bailey, 570 Fed.Appx. 42, 44 (2d Cir. 2014) (“Younger abstention ordinarily applies to a state court's bail application proceedings.” (citation omitted)).
Here, Petitioner's assertion that the state court has violated his right to fair criminal proceedings, a speedy trial, and bail, may present special circumstances permitting habeas corpus review prior to the conclusion of his criminal proceedings. See Braden, 410 U.S. at 493. But Petitioner does not allege that he has exhausted his state-court remedies with respect to his claims.
3. Exhaustion of state court remedies
Although Section 2241 does not contain a statutory exhaustion requirement, it has been interpreted as requiring a petitioner to exhaust available state court remedies prior to seeking any relief thereunder in federal court. See United States ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976) (“[D]ecisional law has superimposed [an exhaustion] requirement in order to accommodate principles of federalism.”). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts,” O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999), thus, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,” id. (noting that the Supreme Court has “never interpreted the exhaustion requirement” to require “a state prisoner to invoke any possible avenue for review” (emphasis original)). A petitioner who has not exhausted available state court remedies generally may seek a writ of habeas corpus only if he: (1) establishes cause for the failure to exhaust and prejudice as a result of the alleged violation of federal law, or (2) demonstrates that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner gives no indication that he has presented his claims through the state's established review process, although the state courts can consider the merits of the claims he presents in this petition. In New York, prior to conviction, a detainee can raise speedy trial claims and claims regarding the denial of bail. See, e.g., Parrish v. Lee, No. 10-CV-8708 (KMK), 2015 WL 7302762, at *12 (S.D.N.Y. Nov. 18, 2015) (noting that a detainee may assert that he has been denied his Sixth Amendment right to a speedy trial in a motion to the trial court under N.Y. Crim. Proc. Law § 30.20); see also People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232 (1979) (“The writ of habeas corpus [filed in state court under New York law] affords an opportunity under constitutional and historical aegis for re-examination of a nonappealable order fixing or denying bail.”).
A criminal defendant can also raise the issue of a potential violation of his constitutional right to a speedy trial in the state trial court and the appellate courts after conviction. See N.Y. Crim. Proc. Law §§ 440.10(h), 450.15.
As Petitioner provides no facts showing that he has exhausted his state court remedies, the petition is denied without prejudice, with leave to replead should he be able to provide facts showing that he has exhausted his state court remedies.
C. Civil action for damages and declaratory relief
Petitioner filed a civil complaint and an amended complaint under the same docket number as the original pleading in which he appears to be seeking damages. (ECF 8, 12.) The Clerk of Court is directed to open the complaint and the amended complaint as a new civil action, and docket in the new case: (1) the complaint (ECF 8); (2) the amended complaint (ECF 12); (3) the IFP application (ECF 6); and (4) this order.
Although federal prisoners may challenge their conditions of confinement under section 2241, see Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008), “[t]he Second Circuit has not yet extended this ability to persons in state custody,” Hargrove v. Dep't of Correction, No. 09-CV-876 (WWE), 2009 WL 2372165, at *1 (D. Conn. July 30, 2009). Moreover, as the Supreme Court held in Preiser v. Rodriguez, 411 U.S. 475 (1973), “a [42 U.S.C.] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Id. at 499; see Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006) (“habeas is the exclusive remedy for a state prisoner seeking an earlier release,” and Section 1983 is the proper remedy to challenge conditions of confinement (citing Preiser, 411 U.S. at 499.)). Thus, if Petitioner seeks damages or declaratory relief in connection with the alleged unconstitutional conditions of his confinement, he must file a civil rights complaint under Section 1983, and either pay $402.00 in fees - a $350.00 filing fee plus a $52.00 administrative fee - or, to request permission to proceed in forma pauperis (“IFP”), that is, without prepayment of fees, by submitting a signed IFP application and a prisoner authorization. See 28 U.S.C. §§ 1914, 1915. If the Court grants a prisoner's IFP application, the Prison Litigation Reform Act (PLRA) requires the Court to collect the $350.00 filing fee in installments deducted from the prisoner's prison trust fund account. See 28 U.S.C. § 1915(b)(1).
CONCLUSION
Petitioner's application to remove his criminal proceedings from the Orange County Court to this Court is denied as improper.
The petition for a writ of habeas corpus, filed under 28 U.S.C. §2241, is denied without prejudice. The Court grants Petitioner leave to file an amended habeas corpus petition, should he wish to do so, if he can show that he has exhausted his state court remedies. The amended petition must be submitted to this Court's Pro Se Office within 30 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 For A Writ Of Habeas Corpus Under 28 U.S.C. § 2241 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
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 Clerk of Court is directed to open the complaint and the amended complaint as a new, separate, civil action, and docket in the new case: (1) the complaint (ECF 8); (2) the amended complaint (ECF 12); (3) the IFP application (ECF 6); and (4) this order.
That matter will be assigned a new docket number, and Petitioner will be directed to submit a prisoner authorization.
The Clerk of Court is further instructed to hold this matter open on the docket until a civil judgment is entered.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.