United States District Court, Southern District of New York
May 4, 1999
GEORGE MORRIS, PETITIONER,
EDWARD REYNOLDS, SUPERINTENDENT OF MOHAWK CORRECTION FACILITY, RESPONDENT.
The opinion of the court was delivered by: Baer, District Judge.
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
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.
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:
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.)
I. A PRELIMINARY NOTE ON THE AEDPA'S ONE-YEAR STATUTE OF
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
II. MORRIS'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT
PREJUDICE AS A "MIXED" PETITION THAT FAILED TO EXHAUST STATE
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
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
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
[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
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 §
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.").
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,
December 3, 1998.