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MORRIS v. REYNOLDS

United States District Court, Southern District of New York


May 4, 1999

GEORGE MORRIS, PETITIONER,
v.
EDWARD REYNOLDS, SUPERINTENDENT OF MOHAWK CORRECTION FACILITY, RESPONDENT.

The opinion of the court was delivered by: Baer, District Judge.

Order

WHEREAS Magistrate Judge Andrew J. Peck issued a Report and Recommendation on December 3, 1998, dismissing petitioner's mixed federal habeas corpus petition because it contained both unexhausted and exhausted claims, and

WHEREAS petitioner submitted to this Court a Notice of Motion of Amendment to Complaint which requested that any of the issues raised by his petition which were determined to be unexhausted be stricken; it is hereby

ORDERED that Magistrate Judge Peck's Report and Recommendation is adopted in all respects, and it is further

ORDERED that the petitioner's unexhausted claims are stricken and dismissed, and it is further

ORDERED that the petitioner should submit an amended petition to Magistrate Judge Peck which includes any and all exhausted claims for a consideration of the merits of the habeas corpus petition.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner George Morris filed this petition for a writ of habeas corpus on March 9, 1998; the New York Court of Appeals decision in his case is dated March 21, 1996. For the reasons set forth below, I recommend that the Court summarily dismiss Morris's petition, not because of the AEDPA's one-year time bar (Morris's claim actually is not time barred), but rather as a "mixed petition" containing unexhausted claims.

FACTS

George Morris's pro se habeas petition was received by the Court's Pro Se Office on March 9, 1998. (See Docket No. 1: Pet. at p. 1, date stamp.)

Morris was indicted in December 1993 on a class D felony count of criminal possession of a weapon in the third degree, and a class A misdemeanor count of criminal possession of a weapon in the fourth degree. See In re Van Leer-Greenberg ex rel. Morris v. Massaro, 87 N.Y.2d 996, 997, 642 N.Y.S.2d 618, 618, 665 N.E.2d 188 (1996). The trial judge initially dismissed the felony count for legal insufficiency, and on August 1, 1994, Morris pled guilty to the misdemeanor count with the promised imposition of a sentence of three years' probation. Id. Thereafter, the trial judge filed a written decision denying Morris's motion to dismiss the felony count. Id. On the date of sentencing, the trial judge orally advised the parties that the felony count was reinstated, and offered Morris the opportunity to withdraw his guilty plea to the misdemeanor count, which Morris refused. Id.

Morris's trial counsel brought an Article 78 petition to prohibit the judge from vacating Morris's plea and to require the judge to impose the promised probation sentence on the misdemeanor guilty plea. The First Department granted the petition, with two judges dissenting. In re Van Leer-Greenberg ex rel. Morris v. Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dept 1995). On March 21, 1996, the New York Court of Appeals reversed and dismissed the Article 78 proceeding. In re Van Leer-Greenberg ex rel. Morris v. Massaro, 87 N.Y.2d 996, 642 N.Y.S.2d 618, 665 N.E.2d 188 (1996).

Apparently, although Morris's petition is unclear, after the Court of Appeals' decision, Morris was convicted on the felony count on June 4, 1997 and sentenced to two and a half to five year's imprisonment. (See Docket No. 5: Morris 8/25/98 Aff. in Support of Application for Appointment of Counsel.)*fn1 Morris did not further appeal his conviction. (See Pet. ¶ 8; see also Docket No. 6: Morris 9/14/98 Aff. at p. 2.)

As noted above, Morris's federal habeas petition was received by this Court's Pro Se office on March 9, 1998, almost two years after the Court of Appeals' decision. The petition raises four claims: first, that the indictment was insufficient and/or improper evidence was presented to the grand jury; second, that the trial court was required to abide by the plea agreement; third, that vacatur of the guilty plea constituted double jeopardy; and fourth, that the trial court violated Morris's constitutional rights in not disclosing the charges and/or exculpatory evidence when requested by Morris's counsel. (Pet. ¶ 12(A)-(D).)

By Order dated July 30, 1998, Chief Judge Griesa directed Morris to show cause why his petition was not untimely under the AEDPA's one-year statute of limitations. (Docket No. 4: 7/30/98 Order.)

By affirmation dated September 14, 1998, Morris responded that his counsel did not tell him of the one-year limitation. (Docket No. 6: Morris 9/14/98 Aff. at p. 1.) Morris also complained that he did not get adequate assistance from the prison law library. (Id. at p. 2.)

ANALYSIS

I. A PRELIMINARY NOTE ON THE AEDPA'S ONE-YEAR STATUTE OF
   LIMITATIONS

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. The AEDPA significantly modified § 2254 for non-death penalty cases. Specifically, the AEDPA instituted a one-year statute of limitations for habeas petitions:

    (d)(1) A 1-year period of limitation shall apply to an
  application for a writ of habeas corpus by a person in
  custody pursuant to the judgment of a State court. The
  limitation shall run from the latest of —

      (A) the date on which the judgment became final by the
    conclusion of direct review or the expiration of the time
    for seeking such review . . .

28 U.S.C. § 2244(d)(1)(A) (1998).

Morris's petition at first blush appears time barred — the New York Court of Appeals decision in Morris's case is dated March 21, 1996, and Morris's petition was filed on or shortly before March 9, 1998, almost two years later. But a more careful review of all of Morris's submissions reveals that his petition is not time barred. In Morris's unusual case, the Court of Appeals' decision was not on appeal but on a petition for a writ of prohibition, and thus did not end the case. Rather, after the Court of Appeals denied his application to enforce the plea bargain, the case returned to the trial court for trial on the reinstated felony count. Although Morris's petition does not contain the necessary information, his application for appointment of counsel discloses, for the first time, that his conviction and sentence to two and a half to five years imprisonment occurred on June 4, 1997. (Docket No. 5: Morris 8/25/98 Aff. at p. 1.) Thus, Morris's March 9, 1998 petition was filed less than a year after his judgment of conviction became final, and it therefore is not time barred.*fn2

II. MORRIS'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT
    PREJUDICE AS A "MIXED" PETITION THAT FAILED TO EXHAUST STATE
    COURT REMEDIES

Morris's habeas petition raises four claims. Only his second habeas claim, that the trial court was required to abide by the plea agreement, was presented to New York's appellate courts (via Morris's petition for a writ of prohibition).*fn3 Morris never appealed from his conviction, and thus he never raised his other three habeas grounds (challenge to the indictment, double jeopardy, and non-disclosure of charges/evidence) in any state appellate court. Those three claims, therefore, are not exhausted.

  A. Prior to the Antiterrorism and Effective Death Penalty
     Act, the Court Was Required to Dismiss "Mixed" petitions
     Containing Both Exhausted and Unexhausted Claims

This section discusses the law as to "mixed" petitions in effect prior to enactment of the AEDPA.

A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b).*fn4 While preamendment Section 2254 did not directly address the problem of "mixed" habeas petitions that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of total exhaustion in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Supreme Court held:

  Because a rule requiring exhaustion of all claims furthers the
  purposes underlying the habeas statute, we hold that a district
  court must dismiss such "mixed petitions," leaving the prisoner
  with the choice of returning to state court to exhaust his
  claims or of amending or resubmitting the habeas petition to
  present only exhausted claims to the district court.

Id. at 510, 102 S.Ct. at 1199.*fn5 The Supreme Court explained that the complete "exhaustion doctrine is principally designed to protect the state courts role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203. "A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-19, 102 S.Ct. at 1203. The Supreme Court further noted that the total exhaustion rule will not impair the prisoner's interest in obtaining speedy federal relief "since he can always amend the petition to delete the unexhausted claims." Id. at 520, 102 S.Ct. at 1204.*fn6

The Second Circuit held, prior to the AEDPA, that "[p]assing on the merits of claims in a habeas petition containing unexhausted claims runs counter to Rose v. Lundy . . . ." Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 125 2d 14 F. Supp.2d 503, 505 (S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.); Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *2-3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 115 (S.D.N.Y. 1997) (Rakoff, D.J. & Peck, M.J.); Gibriano v. Attorney General, 965 F. Supp. 638, 641 (S.D.N.Y. 1997) (Sprizzo, D.J. & Peck, M.J.); Walker v. Miller, 959 F. Supp. 638, 641 (S.D.N.Y. 1997) (McKenna, D.J. & Peck, M.J.); Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. & Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. & Peck, M.J.).

B. Effect of the AEDPA

The AEDPA permits the Court to deny on the merits habeas petitions containing unexhausted claims. Thus, 28 U.S.C. § 2254 now states, in relevant part:

    (b)(1) An application for a writ of habeas corpus on behalf
  of a person in custody pursuant to the judgement 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: . . .

    (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.

28 U.S.C. § 2254(b)(1)-(2) (1998).

Section 2254(b) merely gives the Court discretion to deny unexhausted petitions on the merits; it does not require the Court to determine unexhausted claims. See 28 U.S.C. § 2254(b)(2) (1998).

Section 2254(b)(2), however, "does not provide a standard for determining when a court should dismiss a petition on the merits rather than requiring complete exhaustion." Lambert v. Blackwell, 134 F.3d 506, 516 (3d Cir. 1997); accord, Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 126, 139 L.Ed.2d 77 (1997); Gaylor v. Harrelson, 962 F. Supp. 1498, 1499 (N.D.Ga. April 3, 1997). Neither the Supreme Court nor the Second Circuit has established what standard a district court should use to determine when to dismiss a petition on the merits rather than requiring complete exhaustion.

The Court agrees with the similar decision in Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), where the Court explained:

  Pursuant to the 1996 AEDPA amendments, however, the Court may
  exercise discretion to hear and deny petitioner's non-exhausted
  claim: the total exhaustion rule is no longer binding. See
  28 U.S.C. § 2254(c) [sic; § 2254(b)]. The Court, however, declines
  to exercise the discretion to hear and dismiss petitioner's
  application in this case.

    By refusing to exercise the discretion provided under section
  2254(c) [sic; § 2254(b) ], this Court endorses the rationale
  of the "total exhaustion rule" and continues to furnish state
  appellate courts the initial opportunity to correct trial
  court decisions. Moreover, the refusal to exercise discretion
  here does not conflict with the intent of Congress. In

  fact, enforcing the "total exhaustion rule" in this context
  will "encourage habeas petitioners to exhaust all of their
  claims in state court and to present the federal court with a
  single habeas petition." Rose, 455 U.S. at 520, 102 S.Ct.
  at 1204. This will serve to avoid piecemeal litigation and
  eventually decrease the burden on federal courts. Id.

    Finally, the Court notes that applying the "total exhaustion
  rule" in cases such as this one does not unduly prejudice
  petitioners. Those who misunderstand the requirement and
  submit unacceptable "mixed petitions" may resubmit their
  application pending either the removal of the unexhausted
  claim, or exhaustion of the offending claim at the state
  level.

Duarte v. Hershberger, 947 F. Supp. at 150; accord, e.g., Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.); Fennell v. Artuz, 14 F. Supp.2d 374, 379 (S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *3-4 (S.D.N Y May 19, 1998) (Cote, D.J. & Peck, M.J.); Diaz v. Coombe, 1997 WL 529608 at *4; Johnson v. Scully, 967 F. Supp. at 116; Fluellen v. Walker, 975 F. Supp. 565, 568 (S.D.N.Y. 1997) (Wood, D.J. & Peck, M.J.); Walker v. Miller, 959 F. Supp. at 642; see also, e.g., Dafnos v. Artuz, No. 97 CV 1562, 1998 WL 801775 at *2 (E.D.N.Y. Nov.16, 1998). Duarte does not provide a standard, but makes clear that even under the AEDPA, the federal courts usually should defer to the state courts on unexhausted habeas claims.

The Court notes that several district judges in this Court have expressed the test as whether the unexhausted claim is "patently frivolous":

  [U]nder the AEDPA, in the case of a mixed petition, where a
  court deems the unexhausted claim to be patently frivolous, it
  may now summarily dismiss that claim on the merits and pass on
  to the exhausted claims.

Rodriguez v. Miller, 96 Civ. 4723, 1997 WL 599388 at *3 (S.D.N.Y. Sept.29, 1997); accord. e.g., Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997); Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *3 n. 5 (S.D.N.Y. May 29, 1997); see also, e.g., Colon v. Johnson, 19 F. Supp.2d 112, 120, 122 (S.D.N.Y. 1998); Brown v. Miller, 97 Civ. 1874, 1998 WL 91081 at *2 (S.D.N.Y. March 3, 1998) (Sotomayor, D.J.); Cuadrado v. Stinson, 992 F. Supp. 685, 687 (S.D.N.Y. 1998) (it is perhaps appropriate for court to decide unexhausted claim on merits "where a petition was `patently frivolous,' . . . but this is not such a case. The Court believes that it is still the best policy to `allow[] the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'")*fn7

The Court here need not decide whether the "patently frivolous" or some other standard is appropriate to use to determine when to consider the merits of unexhausted claims pursuant to § 2254(b).*fn8 See, e.g., Cowans v. Artuz, 14 F. Supp.2d at 507; Fennell v. Artuz, 14 F. Supp.2d at 379; Benitez v. Senkowski, 1998 WL 265245 at *4. Suffice it to say that in this case, where three of Morris's four habeas claims have not been presented to any state appellate court, the Court believes it appropriate to decline to exercise its discretion to decide Morris's petition on the merits. This best comports with the rationale of Rose v. Lundy and Duarte v. Hershberger; discussed above.

The Court notes that petitioner Morris should not be heard to complain about the Court's decision as to his petition, since under the AEDPA, this Court can reach the merits as to unexhausted claims only if it denies them. See 28 U.S.C. § 2254(b)(2) (1998) ("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.").

CONCLUSION

For the reasons set forth above, the Court should deny Morris's federal habeas petition without prejudice because he was failed to exhaust three of his four habeas claims in the state appellate courts (unless Morris were to amend his petition to drop his unexhausted claims, see fn. 5 above).*fn9

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to the Chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d.Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

December 3, 1998.


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