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October 24, 1985

SONIA BARRACANO, Petitioner, against ELAINE LORD, Superintendent, Bedford Hills Correctional Center; ELIZABETH HOLTZMAN, District Attorney, Kings County; and ROBERT ABRAMS, Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: BRAMWELL


By petition dated July 27, 1985, Sonia Barracano requests habeas corpus relief pursuant to Title 28, United States Code, section 2254. Petitioner alleges that (1) the State of New York has reneged on its plea bargain, and (2) that the State of New York is "holding 45 days of [her] time." For the reasons set forth below, petitioner's application is dismissed for failure to exhaust state remedies.


 On January 22, 1982, petitioner pled guilty in the Supreme Court of the State of New York, Kings County, to one count of grand larceny in the second degree and seven counts of forgery in the second degree. As a result, petitioner was sentenced on May 10, 1982 to imprisonment for concurrent terms of two to six years. At the time, petitioner and the prosecutor, with the trial judge's approval, apparently agreed that petitioner's sentence would run concurrently with a four-year sentence of imprisonment that this Court had imposed in a federal matter. The agreement further contemplated that petitioner's sentence would be served in federal prison, rather than in state prison.

 Petitioner was incarcerated at Lexington Correctional Facility, a federal prison, until January 4, 1985, during which time a New York State detainer was kept on file against her. She became eligible for parole on her federal sentence on October 20, 1983. However, petitioner waived her federal parole release date because, had she been released, she would have had to serve time in New York State custody, which she apparently did not want to do.

 On January 10, 1984, the Appellate Division, Second Department, unanimously denied petitioner's pro se Article 78 application, which requested relief from her state detainer on the grounds that her plea agreement contemplated release by both jurisdictions whenever parole was granted on the federal sentence.

 Subsequently, on May 18, 1984, petitioner applied to this Court for a writ of habeas corpus, alleging that her return to New York state custody would violate her plea agreement. This Court denied her application on December 18, 1984, finding that petitioner had failed to exhaust her state remedies.

 Upon expiration of petitioner's federal sentence, petitioner was transferred to Bedford Hills Correctional Facility, a New York state prison, where she has been incarcerated since January 4, 1985. She is scheduled to be released in November, 1985.

 On May 6, 1985, defendant moved, in New York State Supreme Court, Kings County, to vacate her judgment of conviction on the grounds that her plea agreement was violated. The trial court denied this motion, disagreeing with petitioner's interpretation of the plea agreement, even though the state prosecutor agreed with petitioner's version. Petitioner did not appeal this decision, nor has she pursued any further relief in the New York courts. The present petition for habeas corpus relief followed.


 It is axiomatic that a state prisoner is required to exhaust available state remedies before filing for federal habeas corpus relief. See 28 U.S.C. § 2254(b),(c) (1982); Rose v. Lundy, 455 U.S. 509, 515-16, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981). In the present case, petitioner clearly has not exhausted her state remedies. She failed to seek any appeal or review of the state trial court's denial of her motion to vacate her conviction. Moreover, her present petition raises a claim that she never presented in state court, namely, that New York State is "holding 45 days of [her] time." Therefore, the Court ordinarily would dismiss the petition without further hesitation.

 In this case, however, the state prosecutor has expressly stated that she will not assert the exhaustion defense. Thus, the Court is faced with the question of what effect the prosecutor's attempted waiver of the exhaustion defense has in this federal habeas proceeding. As will be discussed more fully below, the Court is of the opinion that the prosecutor may not waive the exhaustion defense, and that such a purported waiver of the defense has no effect upon the Court's general obligation to dismiss habeas petitions where state remedies are not exhausted.

 The exhaustion doctrine is primarily intended to protect the state court's role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-91, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973). It is a rule not of jurisdiction, but of comity, see, e.g., Silverstein v. Henderson, 706 F.2d 361, 365, n.9 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983), and is based upon the notion that in our federal system, federal and state courts are "equally bound to guard and protect rights secured by the Constitution." Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251, 29 L. Ed. 868, 6 S. Ct. 734 (1886)). Thus, it is well-settled that federal courts should interfere with the administration of justice in the state courts, by entertaining non-exhausted claims, only under the most exceptional circumstances where justice so requires. See Ex parte Hawk, 321 U.S. 114, 117, 88 L. Ed. 572, 64 S. Ct. 448 (1944); United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972).

 The petitioner in the instant case, as noted above, has clearly failed to exhaust her state remedies. In its affirmation in opposition to the petition, the state has indicated that it "do[es] not assert this bar." This Court holds, however, that the state's attempt to waive the exhaustion defense is improper. Whether a habeas petition should be in federal district court is not a decision for the state prosecutor. It is a determination "that can be made only by that [district] court, after measuring the claim against the mandate of 28 U.S.C. § 2254." ...

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