Opinion
23 Civ. 5563 (PMH)(JCM)
05-23-2024
CHRISTOPHER VILSAINT, Petitioner, v. ANTHONY ANNUCCI, Respondent.
Honorable Philip M. Halpern, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE
Petitioner Christopher Vilsaint (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 12, 2023 (the “Petition”). (Docket No. 1). Instead of answering the Petition, the Attorney General of the State of New York, on behalf of Respondent Anthony Annucci (“Respondent” or the “State”), filed a motion to dismiss the Petition without prejudice on the grounds that Petitioner's claims are ineligible for federal habeas relief at this time because Petitioner failed to exhaust his claims in state court as required (the “Motion”). (Docket Nos. 12, 13). On February 6, 2023, I issued an order notifying Petitioner that if he failed to respond to the Motion by February 27, 2024, the Court would deem it fully submitted. (Docket No. 15). No response was received. For the reasons set forth below, I respectfully recommend that the Motion be granted, and the Petition be dismissed without prejudice.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on June 12, 2023. (Docket No. 1 at 16). Consequently, and because the timeliness of the Petition is not challenged, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. PROCEDURAL HISTORY
The Court limits the background facts to those necessary to resolve the Motion. On May 13, 2017, Petitioner was charged by felony complaint in the County of Rockland, Spring Valley Village Court, in connection with his attempt to rob a convenience store at 4:12 a.m. that morning. (Docket No. 1 at 39). After pleading not guilty, and proceeding pro se at trial, Petitioner was convicted of Attempted Murder in the Second Degree and Attempted Assault in the First Degree. (Docket No. 14-1). He was sentenced on February 6, 2018, to a 15 year prison term, followed by a five year term of supervised release. (Id.); (see also Docket No. 14 ¶ 3).
On January 23, 2019, Petitioner filed a notice of appeal pursuant to New York Criminal Procedure Law (“N.Y. C.P.L.”) § 450.10. (Docket Nos. 1 at 18-19; 14 at 2; 14-2). The Supreme Court of the State of New York, Appellative Division, Second Judicial Department (the “Second Department”), appointed James Licata as counsel for Petitioner's appeal on June 28, 2019. (Docket No. 1 at 26-28). Shortly thereafter, Mr. Licata moved to withdraw, and on September 3, 2019, the Second Department appointed Shepard Kays in his stead. (Docket No. 14-4). Despite new counsel, Petitioner's appeal remained unperfected. Mr. Kays ignored numerous attempts by the Second Department to obtain an update on the status of Petitioner's appeal, including a March 15, 2021 letter from the Second Department's Clerk informing Mr. Kays that his delay was unacceptable and that if he did not file a brief within 60 days, he must submit a letter explaining his failure to do so. (Docket No. 14 ¶ 9). Mr. Kays did neither. (Id. ¶ 10). Instead, on August 31, 2023, he filed a letter notifying the Second Department that he intended to withdraw from representing Petitioner. (Id. ¶ 10). On September 8, 2023, Mr. Kays formally moved to withdraw as counsel, explaining that he would no longer be practicing law in New York and that his delay in withdrawing was due to his mistaken belief that when he stopped paying his bar registration dues, he would automatically be replaced as counsel on Petitioner's appeal. (Id. ¶ 11). The Second Department granted the motion on October 4, 2023, and appointed Gary Eisenberg to replace Mr. Kays. (Docket No. 14-16).
Petitioner's Notice of Appeal is dated February 8, 2019, however, on January 23, 2019, Petitioner submitted a motion for an extension of time, which the Second Department “deemed to constitute a timely notice of appeal.” (Docket No. 14-2). Thus, the Notice of Appeal will be deemed filed on January 23, 2019.
While the appeal was pending, Petitioner contacted the Second Department on numerous occasions, but he never complained about Mr. Kays' performance or requested replacement counsel. Specifically: (1) on January 25, 2021, Petitioner notified the Second Department that he was incarcerated at the Clinton Correctional Facility, (Docket No. 14-5); (2) on May 6, 2021, Petitioner requested the appointment of counsel for his appeal, which the Second Department responded to by informing Petitioner that counsel was already appointed and would be directed to contact him, (Docket Nos. 14-7, 14-8); (3) on November 30, 2022, Petitioner notified the Second Department that he had moved to a different facility and requested permission to file a pro se supplemental brief, which was denied since such briefs may not be submitted until after a counseled brief is filed, (Docket Nos. 14-9, 14-10).
Subsequently, while waiting for Mr. Kays to perfect his direct appeal, Petitioner filed a motion to vacate his conviction in the trial court on March 15, 2023, pursuant to N.Y. C.P.L. § 440.10. (Docket No. 14-11). In the motion, Petitioner argued that the Supreme Court of the State of New York, Rockland County, should vacate his conviction because: (1) the State violated his right to a fair trial under the Fifth and Fourteenth Amendments by improperly commenting on his intent to commit murder, assault and robbery during summation; (2) the State failed to introduce sufficient evidence to establish his intent to kill; (3) the State violated his right to a fair trial under the Fifth and Fourteenth Amendments by withholding unspecified Brady material; and (4) he was deprived of effective assistance of appellate counsel since his “[c]ounsel failed to file [a] brief on direct appeal.” (Id. at 1-3). The trial court denied the motion on July 14, 2023, holding that:
“Brady material” refers to the landmark case Brady v. Maryland, 373 U.S. 83 (1963), in which the Supreme Court held that prosecutors may not withhold exculpatory evidence from defendants in criminal cases.
First, as the People correctly point out, the defendant's claims are conclusory, and his papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts. Second, most of his claims have to do with matters that appeared on the record and are properly the subject of an appeal.
Finally, his claim as to his appellate counsel, though not in the record before this Court, is not the proper subject of a motion pursuant to CPL 440.10.(Docket No. 14-13 at 1) (citations omitted). Petitioner's deadline to seek leave to appeal this decision expired on August 23, 2023-30 days after the State served Notice of Entry on July 24, 2023. See N.Y. C.P.L. § 460.10(4). However, Petitioner still has until August 23, 2024, to apply to the Second Department for an extension of the deadline to appeal the trial court's order. N.Y. C.P.L. § 460.30 (giving defendants one year to apply for an extension upon a showing of “improper conduct, death or disability of the defendant's attorney,” or inability to communicate with the counsel regarding whether to file an appeal.).
On June 12, 2023, while his motion to vacate the judgment was sub judice, Petitioner filed the instant Petition. (Docket No. 1 at 15). The State moved to dismiss the Petition on November 2, 2023, arguing that “petitioner failed to exhaust his state remedies” and has not established that waiver of the exhaustion requirement is warranted pursuant to 28 U.S.C. § 2254(b)(1)(B)(ii) and Barker v. Wingo, 407 U.S. 514 (1972). (Docket No. 13 at 3, 6). Petitioner did not submit a response. Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not
be “overly technical and stringent”), Petitioner argues three claims for relief: (1) that the State violated his right to a fair trial by commenting on his intent to commit murder, assault and robbery during summation; (2) that the State improperly withheld unspecified Brady material; and (3) ineffective assistance of appellate counsel for counsel's delay in filing an opening brief to perfect his direct appeal. (Docket No. 1 at 5-9). In support of each claim, Petitioner argues that he could not exhaust the claims before presenting them in the Petition because “state remedies were unavailable or ineffective.” (Id.).
II. LEGAL STANDARD
Before a defendant may seek redress in federal court for an alleged wrongful conviction, he must first exhaust his claims for relief in the State that convicted him. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. at § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented”). The purpose of the exhaustion requirement is “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, 526 U.S. at 845; see also Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“exhaustion of state remedies requires that [a] petitioner fairly present federal claims to the state courts in order to give the [s]tate the opportunity to pass upon and correct alleged violations of its prisoners' federal rights”) (citations and internal quotations omitted). “The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims.” Paulin v. Grady, No. 14 Civ. 10128 (NSR)(PED), 2015 WL 11988976, at *2 (S.D.N.Y. Dec. 22, 2015) (citation omitted), report and recommendation adopted, 2016 WL 4509068 (S.D.N.Y. Aug. 24, 2016).
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
The Court may excuse a Petitioner's failure to satisfy the exhaustion requirement “if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also 28 U.S.C. § 2254(b)(1)(B)(i) & (ii). For example, “substantial delay in the state criminal appeal process is a sufficient ground to justify the exercise of federal habeas jurisdiction” even where the petitioner's claims have not been fully exhausted in state court. Cody v. Henderson, 936 F.2d 715, 718 (2d Cir. 1991). “In determining whether a delay of a prisoner's appeal violates due process, we look to the Barker criteria, although no one factor is dispositive and all are to be considered together with the relevant circumstances.” Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990) (citing Barker, 407 U.S. at 530-33). The Barker factors include: (1) “[l]ength of delay;” (2) “the reason for the delay;” (3) “the defendant's assertion of his right;” and (4) “prejudice to the defendant.” Barker, 407 U.S. 514 at 530. “A court may also consider federal-state comity in considering whether undue delay excuses a failure to exhaust.” Paulin, 2015 WL 11988976, at *3.
In considering the factors established in Barker, “[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. “The doctrine of exhaustion of state remedies does not require a prisoner to wait six years . . . or even three or four years before enlisting federal aid to expedite an appeal.” Simmons, 898 F.2d at 870. However, the Court must “evaluate delays not just in absolute terms but also in relation to the overall sentence being served by the petitioner.” Paulin, 2015 WL 11988976, at *3 (collecting cases). “[A]ppellate delay by itself” is not “grounds for habeas relief.” Mathis v. Hood, 937 F.2d 790, 794 (2d Cir. 1991). Moreover, even if the Court determines that the exhaustion requirement should be waived due to an improper delay, a “separate and distinct inquiry . . . is required to determine the appropriate remedy for the violation.” Id. “When a prisoner brings an appellate delay claim, a showing of actual prejudice to the appeal is required to obtain additional habeas relief beyond” granting a conditional writ requiring the underlying state appeal to be expedited, which is “the preferred remedy for such claims.” Vasquez v. Reynolds, 58 Fed.Appx. 533, 534 (2d Cir. 2003).
III. DISCUSSION
A. Exhaustion of Petitioner's Claims
The State argues that Petitioner has failed to exhaust any of the claims in the Petition. (Docket No. 13 at 3-5). Petitioner responds that exhaustion here was impossible because “state remedies were unavailable or ineffective” and “[t]here was an unconstitutional delay of hearing [his] appeal and ineffective assistance of counsel.” (Docket No. 1 at 12).
First, Petitioner's prosecutorial misconduct claim is unexhausted because it is a recordbased claim that must be presented on direct appeal before being raised in a federal habeas petition. Petitioner claims that the State improperly commented that “he's going to try to rob, and he's going to try to assault, and he's going to try to murder” even though the prosecution did not adduce evidence of these crimes at trial. (Docket No. 1 at 46). Since these comments were made on the record, Petitioner must raise the claim directly to the Second Department before seeking federal habeas relief. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal.... It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not”) (citations omitted). Petitioner has not raised this claim on direct appeal, therefore, the claim is unexhausted and ineligible for habeas review at this time.
While Petitioner did raise this claim in his N.Y. C.P.L. § 440.10 motion, the trial court denied it because it concerns “matters that appeared on the record and are properly the subject of an appeal” and not a motion to vacate. (Docket No. 14-13 at 1) (citing N.Y. C.P.L. 440.10(2)(b), which states that “the court must deny a motion to vacate a judgment when: . . . [t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal unless the issue raised upon such motion is ineffective assistance of counsel.”).
Second, while Petitioner's Brady claim lacks sufficient information for the Court to determine whether it is record-based or grounded on collateral information, it is clearly unexhausted. Petitioner argues that the State “fail[ed] to supply the defendant with Brady material,” and “an appellate court would reverse the judgment” as a result. (Docket No. 1 at 7). However, Petitioner does not include any details about what evidence he believes was withheld or why he believes it would be exculpatory. This alone warrants dismissal of the Petition since Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires Petitioner to “state the facts supporting each” ground for relief. Vague “allegations, without more, are far too conclusory to provide a basis for habeas relief.” Dupree v. Royce, No. 20-CV-1443 (DC), 2023 WL 8934877, at *4 n.3 (E.D.N.Y. Dec. 27, 2023); see also Porter v. Perdue, No. 9:10-CV-0958 (TJM), 2011 WL 2222362, at *4 (N.D.N.Y. June 7, 2011) (“courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation”) (citing Wood v. Bartholomew, 516 U.S. 1, 8 (1995)). However, even if Petitioner included specific information about what evidence he believes was wrongfully withheld by the State, the claim remains unexhausted because he may still include it in his direct appeal, if it is a recordbased claim, or in a § 440.10 motion if it is based on collateral information. (Docket No. 13 at 4). To the extent the Brady claim included in Petitioner's prior § 440.10 motion is duplicative of the claim asserted in the Petition (which is unclear since neither filing contains any detail), he can still appeal the trial court's denial of his motion by applying for an extension of time to appeal to the Second Department by August 23, 2024. See N.Y. C.P.L. § 460.30. Thus, Petitioner's Brady claim is also ineligible for habeas review at this time.
Finally, before Petitioner may raise his ineffective assistance of appellate counsel claim to this Court, he must first file a petition for a writ of error coram nobis in the Second Department. See Daley v. Lee, No. 10-CV-6065 (NGG), 2012 WL 2577472, at *7 (E.D.N.Y. July 3, 2012) (“[t]he exclusive state court remedy to raise an ineffective assistance of appellate counsel claim is the coram nobis petition....[it] is the only way to exhaust this type of claim for habeas purposes”) (citations omitted); see also Redd v. Woughter, No. 09 Civ. 9819 (JGK), 2010 WL 4983169, at *1 (S.D.N.Y. Dec. 3, 2010) (holding that a petitioner's ineffective assistance of counsel claim was unexhausted since he “did not present . . . [the] claim in a petition for a writ of error coram nobis before bringing th[e] habeas petition.”). “A writ of error coram nobis may be brought at any time.” McCrae v. Artus, No. 10-CV-2988 (RRM), 2012 WL 3800840, at *5 (E.D.N.Y. Sept. 2, 2012) (citations and internal quotations omitted). Here, Petitioner did not seek a writ of error coram nobis before filing the Petition, nor does he explain why he did not do so. Therefore, Petitioner's ineffective assistance of appellate counsel claim is unexhausted.
Accordingly, I conclude and respectfully recommend finding that each of Petitioner's claims in the Petition are premature.
B. The Barker v. Wingo Factors
Petitioner argues that the Court should excuse his failure to exhaust the claims in the Petition because “[s]tate remedies were unavailable or ineffective” and “there was an unconstitutional delay of hearing” his appeal. (Docket No. 1 at 5, 7, 9). In response, the State acknowledges that AEDPA's exhaustion requirement may be excused where presenting the claims on direct appeal “would be futile,” but argues that: (1) this exception would only apply to Petitioner's record-based claims, so his Brady and ineffective assistance of counsel claims would not be eligible; and (2) “[i]n any event . . . petitioner has failed to show that appellate delay constitutes a valid excuse.” (Docket No. 13 at 6).
As an initial matter, Petitioner's only argument for why he could not exhaust his claims before presenting them in the Petition is that appellate counsel has unduly delayed in filing an opening brief with the Second Department. Since Petitioner's Brady claim (to the extent it relies on facts outside the trial record) and ineffective assistance of counsel claim cannot be presented on direct appeal for exhaustion purposes, his argument that he could not exhaust the claims because of poor appellate representation fails as a matter of law. See supra Section III.A. However, even if the claims were entirely record-based, Petitioner still does not meet the requirements for the Court to excuse the exhaustion requirement. Under Barker v. Wingo, the Court must consider (1) the length of delay in filing a direct appeal; (2) what caused the delay; (3) what the Petitioner has done to assert his right to a decision from the appellate court; (4) prejudice to the Petitioner; and (5) judicial comity. Barker, 407 U.S. 514 at 530. Considered together, these factors weigh in favor of the State.
1. Length of Delay
The Second Circuit has held that there is no “specific interval of time after which a habeas petition based on delay of a state prisoner's appeal would excuse compliance with the federal exhaustion requirement.” Simmons, 898 F.2d at 870. Courts often look to “the complexity of the litigation, the advocacy of the parties, and the institutional vigilance of the Court” to determine if the delay was excessive. Geames v. Henderson, 725 F.Supp. 681, 685 (E.D.N.Y. 1989) (citations and internal quotations omitted). In addition, the length of Petitioner's sentence may also be considered. See e.g., Hall v. Le Claire, No. 10 Civ. 3877 (LAP), 2015 WL 6395869, at *16 (S.D.N.Y. Oct. 21, 2015) (holding that “the delay in this case was a small fraction of the petitioner's sentence[,]” so “the first Barker factor does not weigh in [the petitioner's] favor”). Here, Petitioner filed his Notice of Appeal on January 23, 2019, and the Petition on June 12, 2023, therefore, he waited four years for his appeal to be perfected before filing this action. (Docket No. 14 at 2). While this delay would ordinarily be considered excessive, see Cameron v. LeFevre, 887 F.Supp. 425, 430 (E.D.N.Y. 1995) (collecting cases), and Petitioner's claims are not overly complex, the four-year wait is only a small fraction of Petitioner's overall 15-year prison sentence. (Docket No. 14 at 2). Moreover, the Second Department has diligently sought to expedite the appeal on numerous occasions by notifying counsel that “his delay in perfecting the appeal was unacceptable,” and by appointing new counsel as soon as practicable upon prior counsel's withdrawal. (Id. at 3). Therefore, this factor is neutral or weighs slightly in Petitioner's favor.
2. Cause of the Delay
Petitioner did not cause the delay in perfecting his direct appeal, so this factor weighs in his favor. Petitioner filed a notice of appeal on January 23, 2019. (Docket No. 14-2). Mr. Licata was then appointed on June 28, 2019. (Docket No. 14 at 2). Mr. Licata withdrew and was replaced on September 3, 2019, by Mr. Kays. (Docket No. 14-4). Mr. Kays did not advance the appeal. (Docket No. 14 at 3-4). He ignored multiple warnings and overtures from the Second Department because he was under the mistaken impression that when he stopped practicing law in New York, Petitioner's case would automatically be reassigned. (Id.). When Mr. Kays finally realized his belief was incorrect, he moved to withdraw and was replaced by Mr. Eisenberg on October 4, 2023. (Docket No. 14-16). As far as the Court is aware, Mr. Eisenberg has not perfected Petitioner's appeal as of the date of this Report and Recommendation. Therefore, the delay here is entirely attributable to Mr. Licata, Mr. Kays and Mr. Eisenberg-not Petitioner. While the State argues that “this advantage should be slight,” since counsel did not act out of bad faith in delaying the appeal, (Docket No. 13 at 8), the largest delay here was caused by Mr. Kays' unfamiliarity with how bar registration works in the State of New York. Since “ignorance of the law or a mistake of law is no defense to criminal prosecution” in this country, nor should it excuse counsel's ignorance of the rules for attorneys in the state he was practicing. Cheek v. United States, 498 U.S. 192, 199 (1991). As a result, this factor weighs in favor of Petitioner.
3. Assertion of the Right to Appeal
This factor weighs heavily in the State's favor because Petitioner did not press for the Second Department to expedite his appeal or replace his appointed counsel. To determine “whether a petitioner has sought to assert his right to a speedy appeal,” the Court must consider: “(1) whether the petitioner takes steps to obtain counsel, (2) whether the petitioner regularly inquires of his counsel or the court about the delays in his appeal, and (3) whether the petitioner files a grievance against his appointed counsel.” Brown v. Costello, No. 00CIV.6421 (RCC)(MHD), 2004 WL 1837356, at *3 (S.D.N.Y. Aug. 17, 2004).
Here, Petitioner contacted the Second Department on numerous occasions during the pendency of his direct appeal, but never complained about the speed at which it was moving or about his appointed counsel. (Docket No. 14 at 2-3). Specifically: (1) on January 22, 2021- almost two years after counsel was appointed for his direct appeal-Petitioner wrote to the Second Department to notify them that he switched correctional facilities, (Docket No. 14-5); (2) on April 5, 2021, Petitioner wrote to the Second Department asking for an attorney to be appointed to his case, which the Second Department responded to on May 10, 2021, informing him that the court had already appointed counsel and would direct that attorney to contact Petitioner, (Docket No. 14-7); and (3) on November 28, 2022, Petitioner wrote the Second Department to notify the court that he moved to another new correctional facility, and to request permission to file a pro se appellate brief, (Docket No. 14-9). While the letters, in hindsight, may be understood to express general dissatisfaction with the speed of his appeal, they contain no explicit request for new counsel or for the appeal to be expedited. Therefore, this factor weighs in favor of the State. See, e.g., Richard-Antonio v. O'Meara, No. 12-CV-05174 (LAK)(SN), 2013 WL 5019395, at *9 (S.D.N.Y. May 21, 2013) (holding that a petitioner must do more than “exert[] minimal effort to obtain a prompt resolution of his appeal”), report and recommendation adopted, 2013 WL 5049065 (S.D.N.Y. Sept. 13, 2013).
4. Prejudice
This factor weighs in the State's favor. Petitioner includes almost no facts in support of his claims besides a general reference to allegedly improper statements made by the State during summation. When a petitioner's “complaints lack any factual specificity that would enable the Court to determine that ‘there is a reasonable probability that, but for the delay, the result of the appeal would have been different,'” the prejudice factor weighs in favor of the State. Richard-Antonio, 2013 WL 5019395, at *9 (quoting Mathis, 937 F.2d at 794). Moreover, “the Court cannot assume prejudice on the basis of delay alone.” Id. Therefore, this factor weighs in favor of the State.
5. Judicial Comity
This final factor also weighs in the State's favor since Petitioner's direct appeal is now “on track” to be perfected. (Docket No. 13 at 10). “[E]ven if the Court were to find that the appellate delay was egregious, when a previously-stalled state . . . proceeding has come to life . . . it is appropriate for a federal court to give the state appellate courts an opportunity to hear the claims in the first instance.” Richard-Antonio, 2013 WL 5019395, at *10 (citations and internal quotations omitted) (cleaned up). Here, the Second Department appointed new counsel for Petitioner on October 4, 2023. (Docket No. 14-16). Therefore, the appeal is now “moving forward.” Roberites v. Colly, 546 Fed.Appx. 17, 20 (2d Cir. 2013). Further, because the Petition includes at least one record-based claim, judicial comity favors giving the Second Department a chance to address that claim in the first instance. Id. Finally, even if the Court were to find in Petitioner's favor, the proper remedy “would be to order the Appellate Division to hear his appeal within a reasonable time period.” Richard-Antonio, 2013 WL 5019395, at *10. Since the Second Department is “poised to do just that,” this factor weighs in favor of the State. Id.
Accordingly, I conclude and respectfully recommend finding that the majority of the Barker v. Wingo factors favor the State and, therefore, Petitioner's failure to exhaust his claims before raising them here should not be excused.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Motion be granted and the Petition be dismissed without prejudice. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Philip M. Halpern at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Philip M. Halpern and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).