Opinion
99-CV-0784 (JBW).
May 13, 2003.
JUDGMENT ORDER
The petition for a writ of habeas corpus is denied for failure of petitioner to prosecute. On April 25, 2003, a scheduling order was sent to the address petitioner filed with the court on January 11, 2000. No updated address has been subsequently filed. The scheduling order was returned as undeliverable; petitioner was no longer at that address.
For the reasons discussed briefly below, the petition is likewise dismissed on the merits. The hearing set for June 10, 2003, is stricken from the calendar.
I. Facts
In late 1989, petitioner was charged, inter alia, with the sale and possession of a controlled substance after he sold two vials of crack cocaine to an undercover police officer. In the midst of the trial he failed to appear in court. A bench warrant was issued, and he was convicted and sentenced, in absentia, to a prison term of three to nine years. In October 1990, after returning from abroad, he was apprehended by Texas authorities who learned that New York had an outstanding warrant against petitioner. It appears that the Texas authorities were advised that New York declined to extradite petitioner.
He was released and shortly thereafter moved to Florida. In 1994 he pled guilty to a weapons possession charge in Florida. There is no evidence that New York was aware of the weapons conviction until June 1997, when a sheriff's office in Florida arrested petitioner on the 1989 bench warrant. Petitioner was shortly thereafter returned to New York.
In his petition for a writ of habeas corpus, petitioner claims that execution of his sentence violates due process of law because New York "waived" jurisdiction over him and the to require him to serve his sentence would violate notions of fundamental fairness.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
III. Exhaustion
A state prisoner's federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
An exception to the exhaustion requirement set forth in Rose v. Lundy has been provided for by statute. A district court may, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." 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."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3).
IV. Present Claim
Petitioner claims that New York waived jurisdiction over him when it failed to seek his extradition while he was in custody in Texas, and that to require him to serve his sentence now would violate his due process rights and infring notions of fundamental fairness. The State of New York has maintained at all times that it never sought to waive jurisdiction over petitioner, and that at worst its failure to seek his extradition while petitioner was in custody in Texas was due to a bureaucratic slip-up.
Petitioner presented his claim to both the state trial court and the Appellate Division. The claim was denied in both courts. As the Appellate Division explained, "it is not sufficient to prove official misconduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state's action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with `fundamental principles of liberty and justice' to require a legal sentence to be served in the aftermath of such action or inaction." People ex rel. Walker v. Mosckiccki, 252 A.D.2d 992, 994 (N.Y.App.Div. 1998) (quoting Piper v. Estelle, 485 F.2d 245, 346 (5th Cir. 1973)). The court also found that New York's failure to extradite petitioner while he was in custody in Texas was "little more than an administrative mistake . . . or a bureaucratic cross-up . . . rather than an affirmative wrong or gross negligence by the state." Id.
It appears that petitioner failed to exhaust this claim in state court because he did not properly request the New York Court of Appeals to hear it. Whether or not the claim is properly exhausted is immaterial, however, because it is meritless. Any delay in the execution of petitioner's sentence is due almost entirely to his willful flight from New York and his eight-year effort to evade the sentence imposed upon him.
The state courts' factual determinations are not unreasonable. Petitioner's due process rights have not been violated, and notions of fundamental fairness are not offended by his incarceration. There is apparently no basis to claim innocence. The fact that he was not present at sentencing — as contrasted with his abasence from a trial in progress — is not raised.
V. Conclusion
The petition for a writ of habeas corpus is denied on the merits and for failure to prosecute. A certificate of appealability is denied; no basis for appeal is presented.
SO ORDERED.