Opinion
20-CV-4498 (AT) (BCM)
05-21-2021
MOUSTAPHA WALKER, Petitioner, v. JULIE WOLCOTT, Superintendent of Orleans Correctional Facility, Respondent.
HON. ANALISA TORRES
REPORT AND RECOMMENDATION
BARBARA MOSES, United States Magistrate Judge.
Now before the Court for report and recommendation is respondent's motion (Mot.) (Dkt. No. 10) to dismiss the habeas corpus petition (Pet.) (Dkt. No. 1) brought by Moustapha Walker pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition for failure to exhaust state court remedies. Because petitioner has not yet sought leave to appeal the decision denying his New York Criminal Procedure Law (CPL) § 440.10 motion - but still has time to do so - respondent's motion should be granted, and the petition should be dismissed without prejudice to refiling after petitioner has exhausted his state court remedies.
Background
On January 11, 2018, petitioner was convicted, in New York County Supreme Court after pleading guilty to fourth-degree criminal possession of a controlled substance in violation of Penal Law § 220.09(1). Pet. ¶ 2; Declaration of Dennis A. Rambaud (Rambaud Decl.) (Dkt. No. 10-1) ¶ 1. Due to his status as a second felony drug offender previously convicted of a violent felony (by plea, in 2008), petitioner was sentenced to a determinate prison term of 3-1/2 years followed by 1-1/2 years of post-release supervision. Pet. ¶ 2; Rambaud Decl. ¶ 1. Petitioner then appealed to the Appellate Division, First Department, on the following grounds: (1) "his prior conviction was unconstitutionally obtained"; (2) he was deprived of the effective assistance of his prior counsel because that attorney failed to request youthful offender treatment during the 2008 plea proceedings; and (3) his 2008 plea was "not knowing, intelligent, and voluntary in light of his cognitive limitations." See People v. Walker, 172 A.D.3d 572, 572 (1st Dep't 2019). On May 21, 2019, the Appellate Division rejected his claims and affirmed his conviction. Id. Petitioner sought leave to appeal in the New York Court of Appeals, but the Court of Appeals denied his application on August 19, 2019. People v. Walker, 34 N.Y.3d 939, 939 (2019).
On March 27, 2020, petitioner filed a pro se application in the Appellate Division for a writ of error coram nobis, seeking to vacate that court's May 21, 2019 decision affirming his 2018 conviction on the ground that he was deprived of the effective assistance of counsel on his direct appeal from that conviction. Petitioner argued that his appellate counsel failed to make the following arguments: (1) that the trial court did not have "subject matter jurisdiction" over petitioner's case because he was initially charged in a misdemeanor complaint; and (2) that the trial court erred in denying petitioner's pretrial suppression motion. Pet. at ECF pages 11-24. Petitioner added that his appellate counsel should have been disqualified for a conflict of interest because he was employed by the same firm as petitioner's trial counsel. Id. at ECF pages 18-19. In a summary opinion issued on August 27, 2020, the Appellate Division denied petitioner's coram nobis application. Rambaud Decl. Ex. 1. As of September 23, 2020 (the date of the Rambaud Declaration), petitioner "ha[d] not filed an application for leave to appeal from the denial" of his coram nobis application. Decl. ¶ 5.
By motion dated May 2, 2020, petitioner moved pro se in the Supreme Court to vacate his 2018 conviction pursuant to CPL § 440.10 on the following grounds: (1) the trial court lacked subject matter jurisdiction because petitioner was initially prosecuted on the basis of a misdemeanor complaint; (2) petitioner was deprived of the effective assistance of counsel, in that his trial counsel failed to raise the subject matter jurisdiction claim; and (3) his guilty plea was not voluntary, nor knowingly and intelligently made. Pet. at ECF pages 77-83.
On June 11, 2020, with his CPL § 440.10 motion still pending in New York County Supreme Court, petitioner filed his pro se petition for habeas corpus relief in this Court, raising the same claims: (1) that the state court lacked subject matter jurisdiction; (2) that he was deprived of the effective assistance of counsel; and (3) that his guilty plea was not voluntary, nor knowingly and intelligently made. Pet. ¶ 12. In his petition, Walker admitted that none of these arguments had been presented to the state's highest court but asserted that he was unable to do so because: "(1) The New York County Supreme Court will not or cannot render a disposition, thereby denying the Petitioner the right to an appeal[;] (2) The State of New York is ineffective[;] and (3) The State of New York is shut-down by Executive order 202 [executed] by the Governor of New York State" in connection with the COVID-19 pandemic. Pet. ¶ 15.
On July 28, 2020, the Honorable Analisa Torres, United States District Judge, referred the case to me for report and recommendation. (Dkt. No. 4.)
On September 23, 2020, respondent moved to dismiss the petition on the ground that petitioner's habeas claims are unexhausted. When the motion to dismiss was filed, petitioner's CPL § 440.10 motion was still pending in state court.
By Order dated September 28, 2020 (Dkt. No. 11), I directed petitioner to file his response by October 28, 2020. In a letter dated September 29, 2020 (received by the Pro Se Office on October 6, 2020 and filed the same day) (Dkt. No. 12), petitioner wrote that respondent "served a defective motion, which the petitioner deems to be a Sham [sic]." Id. at 1. He went on to argue: "The motion to dismiss by the respondent fails to raise issues of facts in there [sic] declaration, and the petitioner objects and shall not respond to the motion, or it shall have a fatal conclusion." Id.
On December 2, 2020, petitioner filed a new habeas petition, this time in the United States District Court for the Western District of New York. (See Dkt. Nos. 14, 15.) That court transferred the new petition to this district. See Walker v. Wolcott, No. 20-cv-7030 (W.D.N.Y. Jan. 6, 2021). On January 11, 2021, the Clerk of Court in this district docketed the petition as a new action, under Case No. 21-cv-196. Thereafter, however, Judge Torres reviewed the new petition and concluded "that it should not have been opened as a new action" because it was "best construed as a supplemental response to Respondent's motion to dismiss the petition" in this action, and directed the Clerk's Office to docket the new filing as such. (Dkt. No. 14 at 2.) In that second petition, Walker again complains that respondent improperly served a motion to dismiss his initial petition without leave of Court instead of answering it. (Dkt. No. 15 at ECF pages 9-10.)
In a letter dated April 14, 2021 (received by the Pro Se Office on April 26, 2021 and filed the same day) (Dkt. No. 18), petitioner requested an update on his "motion objecting to the respondent's motion to dismiss without leave of the court" and sought leave to file a summary judgment motion pursuant to Fed.R.Civ.P. 56(c). Petitioner reiterated that he "could not" exhaust his state court remedies, and he thus "had no other remedy other than the petition for a writ of habeas corpus." (Id.) By Order dated April 29, 2021, I denied petitioner's application for leave to file a motion for summary judgment without prejudice to renewal in the event the pending motion to dismiss is denied. (Dkt. No. 19.)
By Order dated May 6, 2021 (Dkt. No. 20), I directed respondent to update the Court as to the status of petitioner's CPL § 440.10 motion. In a status report dated May 13, 2021 (Dkt. No. 21), respondent advised the Court that the Honorable Michael Obus of the New York County Supreme Court denied petitioner's CPL § 440.10 motion in a written order dated November 17, 2020 (November 17 Order) (id. at ECF pages 4-10). According to respondent, the New York County District Attorney's Office "has not yet served petitioner with notice of entry" of the November 17 Order. Id. at 1. Therefore, respondent explains, "the 30-day period for petitioner to file his leave application in the Appellate Division has not yet commenced, and the motion remains pending for purposes of the AEDPA statute of limitations." Id. at 1 (citing Mastropietro v. Bradt, 2012 WL 4820819, at *2 (S.D.N.Y. Oct. 9, 2012)). Respondent does not explain why the District Attorney has not yet served petitioner with notice of entry of the November 17 Order.
Legal Standards
Exhaustion of state remedies is a condition precedent to federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). State remedies are exhausted when a petitioner has "fairly present[ed]" each of his habeas claims in "each appropriate state court (including a state supreme court with powers of discretionary review)," in a manner that "alert[s] that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations and citations omitted); see also 28 U.S.C. § 2254(c) (if the petitioner still has "the right under the law of the State to raise, by any available procedure, the question presented," he "shall not be deemed to have exhausted" his state remedies). "As a general matter, unexhausted claims must be dismissed without prejudice to afford the petitioner an opportunity to exhaust the claim in state court." Rodriguez v. Sheaham, 2016 WL 3522278, at *3 (S.D.N.Y. June 21, 2016) (citing Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). If a petitioner has failed to exhaust his claims in state court, but no longer has a procedural mechanism to do so - for example, because he failed to take the next step in state court before the applicable time limit expired - his claims are deemed exhausted but "procedurally defaulted" (or "procedurally barred"), precluding federal habeas review. Coleman v. Thompson, 501 U.S. 722, 728, 744 (1991).
Analysis
Each of the habeas claims that petitioner seeks to present to this Court was first raised in his CPL § 440.10 motion. Because petitioner has not sought leave to appeal the denial of that motion to the Appellate Division - but still has time to do so - he has not exhausted any of his habeas claims in state court. See CPL § 460.10(4)(a) ("Within thirty days after service upon the defendant of a copy of the order sought to be appealed, the defendant must make application, pursuant to section 460.15, for a certificate granting leave to appeal to the intermediate appellate court."). Before this Court may consider the petition, Walker must present the claims set forth therein "to each level of the State court system as required by 28 U.S.C. § 2254(b)(1)(A)." Priester v. Senkowski, 2002 WL 1448303, at *6 (S.D.N.Y. July 3, 2002) (explaining that exhaustion required petitioner to seek leave to appeal the denial of his CPL § 440.10 motion); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("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"). Accordingly, I recommend that petitioner's claims be dismissed without prejudice to renewal, so that petitioner may "pursue any procedural options available to him in New York state court, and then take whatever steps may be appropriate to return to federal court if necessary." Diguglielmo v. Sankowski, 42 Fed.Appx. 492, 496 (2d Cir. 2002); see also Carpenter v. Reynolds, 212 F.Supp.2d 94, 98 (E.D.N.Y.2002) (holding that where a petition "contains only unexhausted claims . . . the Court has no basis to retain jurisdiction while [petitioner] pursues exhaustion").
If, as respondent reports, the New York County District Attorney's Office has not yet served petitioner with notice of entry of the November 17 Order, then petitioner's claims are not proce-durally barred, as his time to seek leave to appeal has not yet run. Although respondent served petitioner with the May 13 status report, which attaches a copy of the November 17 Order, New York case law suggests that petitioner will have 30 days from the date on which counsel for the prevailing party in the state court proceeding - that is, the New York County District Attorney's Office - serves him with notice of entry of that order to file his leave application in the Appellate Division. See CPL § 460.10(4)(a); People v. Washington, 86 N.Y.2d 853, 854 (1995) (construing CPL § 460.10(1)(a) to "require prevailing party service in order to commence the time for filing a notice of appeal"); Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999) (same); Reyes v. Phillips, 2005 WL 475544, at *6 (S.D.N.Y. Mar. 1, 2005) ("Washington and related New York State case law, however, do not appear to indicate that receipt of a written copy of an order by some means other than service by the prevailing party is sufficient to begin the running of the time to appeal."). Conversely, however, we have found nothing in New York law that would bar petitioner from filing a leave application before he is formally served with notice of entry by the District Attorney.
The Court rejects petitioner's argument that he was unable to exhaust his state court remedies in light of the pandemic as moot, considering that on November 17, 2020 (five months after he filed his petition), the New York County Supreme Court did, in fact, issue a decision on his CPL § 440.10 motion. Therefore, petitioner cannot demonstrate that he had "no opportunity to obtain redress in state court" or that "the [state] corrective process is so clearly deficient as to render futile any effort to obtain relief," as would be required to qualify for an exception to the exhaustion requirement. See Ellman v. Davis, 42 F.3d 144, 149 (2d Cir. 1994) (emphasis in the original).
Petitioner will not be prejudiced by this result because, under AEDPA, his one-year limitations period is tolled pending resolution of his CPL § 440.10 proceedings. See 28 U.S.C. § 2244(d)(1) ("The limitations period shall run from the latest of . . . (A) the date on which the judgment became final by the conclusion of direct review . . . "). Moreover, if petitioner is unsuccessful in state court, and then refiles the same habeas claims, the refiling will not constitute a "second or successive petition" that would be subject to dismissal pursuant to 28 U.S.C. § 2244(b). See Slack v McDaniel, 529 U.S. 473, 485-86 (2000) ("A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.").
Conclusion
For the reasons stated above, I respectfully recommend that respondent's motion to dismiss Walker's petition for failure to exhaust be granted and that this action be dismissed without prejudice to renewal once petitioner's claims have been exhausted in state court.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to petitioner Moustapha Walker.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007. No courtesy copies need be delivered to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Torres. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).