Opinion
21-CV-10714 (LTS)
12-27-2021
MARCUS WILSON, Petitioner, v. AMY LAMANNA, Respondent.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Petitioner, currently incarcerated at Five Points Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2017 conviction in the New York Supreme Court, New York County. By order dated December 15, 2021, the Court granted Petitioner's request to proceed in forma pauperis. The Court directs Petitioner to file an amended petition within sixty days of the date of this order as detailed below.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a Section 2254 petition without ordering a responsive pleading from the state, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4; see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000). 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); 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)).
BACKGROUND
The following facts are taken from the petition and public court records. In 2017, a New Yo r k County jury found Petitioner guilty of two counts of robbery in the second degree. (ECF 1 ¶ 9.) The Appellate Division, First Department affirmed the conviction, and the Court of Appeals denied Petitioner leave to appeal. See People v. Wilson, 186 A.D.3d 1166 (1st Dep't 2020), 36 N.Y.3d 1054 (Jan. 6, 2021).
The Appellate Division's affirmance addressed the following issues: (1) the trial court did not abuse its discretion by admitting testimony that Petitioner had access to and was in possession of a starter pistol that resembled the weapon used in the crimes; (2) the trial court did not abuse its discretion by admitting surveillance video; (3) Petitioner's allegation of prosecutorial misconduct on summation was unpreserved for appellate review, and the Appellate Division declined to address it in the interest of justice; and (4) Petitioner was properly adjudicated as a persistent felony offender. See People v. Wilson, 186 A.D.3d 1166 (1st Dep't 2020).
In May 2021, while Petitioner was in punitive segregation in Auburn Correctional Facility, prison officials took Petitioner's legal materials, which hindered his efforts to file in the trial court a motion to vacate the judgment under N.Y. Criminal Procedure Law § 440.10. (Id. ¶¶ 10-11a-b.) Thereafter, on an unspecified date, Petitioner filed a Section 440.10 motion, setting forth the following grounds:
double jeopardy/identification speedy trial/actual innocence ineffective assistance of counsel legally insufficient prosecutorial instrument no waiver for grand jury denial never conceded to adjournment D.A. offered 7 years and lawyer said not to take it failed to turn over discovery of police.(Id. ¶ 12.) That motion is pending.
Petitioner seeks habeas corpus relief from this Court on the following grounds: (1) his criminal proceedings, which resulted in two mistrials, violated double jeopardy; (2) his right to a speedy trial was violated; (3) his trial and appellate counsel were ineffective for failing to raise the double jeopardy issue and failing to challenge the admission of unauthenticated surveillance video; and (4) there was legally insufficient evidence to sustain the conviction. (Id. ¶ 9.) In response to questions on the petition form about whether Petitioner exhausted his state court remedies, Petitioner wrote “pending, ” and “original was stolen at Auburn May 2021 @ SHU.” (Id.)
DISCUSSION
I. Exhaustion of State Court Remedies
A state prisoner must exhaust all available state remedies before filing a petition for a writ of habeas corpus under 2254. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982). This exhaustion doctrine means that the state courts must be given the first opportunity to review constitutional errors associated with Petitioner's confinement. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner may satisfy the exhaustion requirement by fairly presenting his claims through a state's established appellate review process. Id. “A petitioner has ‘fairly presented' his claim only if he has ‘informed the state court of both the factual and legal premises of the claim he asserts in federal court.'” Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
In order to exhaust any issues for purpose of habeas corpus review, Petitioner must appeal his judgment of conviction to the New York State Supreme Court, Appellate Division. N.Y. Crim. P. L. § 460.70 (McKinney 2010). Should that court's decision adversely affect Petitioner, he should then seek leave to appeal to the New York Court of Appeals, the highest state court. Id. at § 460.20 (McKinney 2010); see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should Petitioner raise for habeas corpus relief any grounds raised in N.Y. Crim. P. L. § 440.10 motions and/or other collateral motions, he must show that those grounds have been completely exhausted by seeking leave to appeal to the New York State Supreme Court, Appellate Division. Ramos v. Walker, 88 F.Supp.2d 233 (S.D.N.Y. 2000).
The petition does not establish that Petitioner has exhausted his state-court remedies with respect to any of the grounds on which he seeks habeas corpus relief. The only grounds that have been exhausted are those that were raised on direct appeal, see footnote 1, but Petitioner does not assert those grounds in this petition. Petitioner appears to seek habeas corpus relief on some of the grounds asserted in his Section 440.10 motion, but that motion remains pending. To exhaust those claims, Petitioner must seek leave to appeal any adverse determination from the trial court to the Appellate Division.
If the amended petition is a “mixed petition, ” meaning that Petitioner is asserting both exhausted and unexhausted claims, the Court has several options for handling mixed petitions: (1) stay the petition pending exhaustion of all grounds for relief, Rhines v. Weber, 544 U.S. 269, 277-78 (2005); (2) dismiss the petition without prejudice pending total exhaustion, Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir. 2001); or (3) consider only the exhausted claims if Petitioner agrees to abandon his unexhausted claims, id. If it is clear from the amended petition that Petitioner is asserting only unexhausted claims, the Court will dismiss the petition without prejudice to refiling once he has exhausted his state-court remedies.
II. Leave to Amend Petition
The Court grants Petitioner leave to submit an amended petition within sixty days of the date of this order. Should Petitioner decide to file an amended petition, he must state his grounds for relief and detail the steps he has taken to exhaust them fully in the New York courts. Petitioner must exhaust all available state-court remedies in order to proceed with this petition. See 28 U.S.C. § 2254(b)(1). Petitioner is advised that an amended petition completely replaces the original petition.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
Petitioner is directed to file an amended petition containing the information specified above. The amended petition must be submitted to the Clerk's Office within sixty 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 Under 28 U.S.C. § 2254 form is attached to this order, which Petitioner should complete as specified above. Once submitted, the Court will review the petition for substantive sufficiency, and then, if the amended petition is sufficient, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied.
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 Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket.
SO ORDERED.
Petition for Relief From a Conviction or Sentence By a Person in State Custody
(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)
Instructions
1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief.
2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. You must pay a fee of $5. If the fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $ _____, you must pay the filing fee.
7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition.
8. When you have completed the form, send the original and _____ copies to the Clerk of the United States District
Court at this address:
Clerk, United States District Court for
Address
City, State Zip Code
9. CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
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