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United States District Court, N.D. New York

February 20, 2004.

THOMAS J. GERACI, Petitioner,
Sheriff, Schoharie County Jail,[fn1] Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2

*fn1 Petitioner named the Schoharie County District Attorney as the respondent in this action. See Pet. at P. 1. However, the proper respondent in a petition brought pursuant to 28 U.S.C. § 2254 is the petitioner's custodian. See Rule 2(a) of the rules governing § 2254 cases; Viserto v. Goord, 97-CV-0633, 1998 WL 214814, at *1 n.1 (W.D.N.Y. Apr. 20, 1998). Since Geraci was incarcerated at the Schoharie County Jail when he commenced this action, the court substitutes the Sheriff of the Schoharie County Jail as the respondent in this proceeding.


 I. Background

  A. State Court Proceedings

  According to the testimony adduced at trial, Robert Missini was a New York State Trooper assigned to the Community Narcotics Enforcement Team ("CNET") in Schoharie County, New York. See Transcript of Trial of Thomas J. Geraci (10/1/96) ("Tr.") at P. 31.*fn2 On October 28, 1995, Trooper Missini met with a confidential informant and they drove to a nearby gasoline station where they met petitioner, pro se Thomas J. Geraci (Tr. at PP. 33-34). Geraci and the informant engaged in a brief conversation, and Geraci entered the vehicle and the three drove for a period of time (Tr. at P. 34). Geraci informed Trooper Missini that the lysergic acid diethylamide ("LSD") and cocaine which Trooper Missini indicated he wished to purchase would cost $130.00 (Tr. at PP. 34-35). Trooper Missini provided Geraci with that amount, after which Geraci exited the automobile, entered a nearby building and returned to Page 3 Trooper Missini's car without any drugs (Tr. at p. 35). After the three men drove to another location, Geraci left the car, entered another building, and returned with a clear plastic bag containing a white powder.*fn3 Id. At that time, Geraci returned $50.00 to Trooper Missini because he was unable to purchase LSD. Id.

  Geraci was indicted by a grand jury and charged with third degree criminal sale of a controlled substance and fifth degree criminal possession of a controlled substance (Tr. at PP. 5-6). Geraci's jury trial commenced on October 1, 1996, with County Court Judge George R. Bartlett III, presiding. At the conclusion, Geraci was found guilty of both counts (Tr. (Volume II)*fn4 at P. 128). On April 9, 1997, Judge Bartlett sentenced Geraci to concurrent indeterminate terms of one to three years imprisonment. See Sentencing Tr. (4/9/97) at PP. 11-12.

  Geraci appealed his convictions and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Geraci, 254 A.D.2d 522 (3d Dept. 1998). Geraci never Page 4 sought leave to appeal that decision to New York's Court of Appeals (Pet. at ¶ 9(e)), and Geraci did not file any other state court challenges to his convictions. Id. at ¶ 10.

  B. This Proceeding

  Geraci filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on March 19, 1999. See Pet. Before the respondent filed his response, Geraci filed a notice with the court indicating that he was no longer incarcerated (Dkt. No. 15). On October 25, 1999, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition (Dkt. Nos. 16-17).

  II. Discussion

 A. Release from Prison

  Initially this court must determine whether Geraci's release from prison has rendered this action moot.

  Generally, a habeas petitioner's release from prison does not render that party's habeas corpus petition moot because § 2254 requires only that the petitioner be "in custody" at the time the petition is filed. Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994); Cadilla v. Johnson, Page 5 119 F. Supp.2d 366, 371 n.2 (S.D.N.Y. 2000). The Constitution's "case-or-controversy" requirement will also generally be satisfied by the typical habeas petition challenging the validity of the conviction because the incarceration (or restriction(s) imposed by the terms of the parole) "constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer).

  In this case, Geraci's claims do not appear to have been rendered moot by his release from prison because he filed his habeas petition while in custody, and the collateral consequences which still exist as a result of his felony conviction*fn5 preclude a finding that this matter is moot. See Spencer, 523 U.S. at 12 ("it is an `obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)); Binder v. Szostak, 96-CV-0640, 1997 WL 176353, at *1-3 (N.D.N.Y. Apr. 11, 1997) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge Gustave J. Page 6 DiBianco) (citations omitted).

 B. Failure to Exhaust

  As noted above, Geraci never filed an application for leave to appeal the Appellate Division's decision to the Court of Appeals (Pet. at 9(e)).

  It is well settled that all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Glover v. Bennett, 98-CV-0607, 1998 WL 278272, at *1 (N.D.N.Y. May 21, 1998) (Pooler, J.). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye, 696 F.2d at 191. Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was Page 7 substantially different from that asserted in state court." Glover, 1998 WL 278272, at *1 (quoting Daye, 696 F.2d at 192) (footnote omitted). This exhaustion doctrine is satisfied if the claim has been "fairly presented" to the state courts. See Dorsey, 112 F.3d at 52 (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191; Morales v. Miller, 41 F. Supp.2d 364, 374 (E.D.N.Y. 1999). Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192; Morales, 41 F. Supp.2d at 374. A claim that has been abandoned at the appellate level is unexhausted and therefore generally may not be considered by a federal court. Snead v. Artuz, 99CIV2406, 2001 WL 199409, at *4 (S.D.N.Y. Feb. 28, 2001); Cardenas v. Superintendent, CV-94-5093, 1996 WL 497138, at*4 (E.D.N.Y. Aug. 26, 1996) (citing Grey, 933 F.2d 119).

  To satisfy this exhaustion requirement, a petitioner must have asserted all of the claims for which federal habeas review is sought in an application for leave to appeal to the New York Court of Appeals. See Bennett v. Artuz, ___ F. Supp.2d ___, 98-CV-1274, 2003 WL 22298977, at Page 8 *5 (E.D.N.Y. Sept. 26, 2003) (citing Grey, 933 F.2d 119); Shanks v. Greiner, 01CV1362, 2001 WL 1568815, at *3 (S.D.N.Y. Dec. 10, 2001) ("[i]n New York, [the exhaustion doctrine] requires that a petitioner seek leave to appeal to the New York Court of Appeals by submitting an application that explicitly sets forth each federal claim"); Johnson v. Greiner, 00CIV8171, 2001 WL 876811, at *11 n.2 (S.D.N.Y. Aug. 2, 2001); Bailey v. People of State of New York, 01CIV1179, 2001 WL 640803, at *4-5 (S.D.N.Y. June 8, 2001). Geraci cannot now seek leave from the Court of Appeals as to any of his claims because applications for leave to appeal must be filed "within thirty days after service upon the appellant of a copy of the order sought to be appealed." See N.Y. Crim. Proc. L. ("CPL") § 460.10(5)(a).

  Since Geraci never submitted any leave application to the Court of Appeals, he has failed to exhaust his state court remedies. Additionally, because his appeal was decided in 1996, he can no longer properly return to state court to exhaust those remedies.*fn6 Therefore, Geraci has procedurally defaulted on his claims. Stone v. Stinson, 121 F. Supp.2d 226, Page 9 236 (W.D.N.Y. 2000) (citing Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993); Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000)). Thus, Geraci's claims are "deemed exhausted" for purposes of this action. See Spence v. Superintendent Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Senor v. Greiner, 00CV5673, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002). Therefore, the court's review of the substance of his claims is conditioned upon Geraci demonstrating cause for his default and resulting prejudice, or presenting evidence to show that he is "actually innocent" of the crimes of which he was convicted. Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002) (citations omitted), cert. denied, 537 U.S. 955 (2002); Ramirez v. Attorney General of State of New York, 280 F.3d 87, 94 (2d Cir. 2001) (citations omitted); Bennett, ___ F. Supp.2d at ___, 2003 WL 22298977, at *5.

  "Cause" is established where the petitioner demonstrates that some objective factor external to the petitioner impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); Tor v. Duncan, 01 CIV. 3984, 2003 WL 22479250, at *4 (S.D.N.Y. Nov. 4, 2003); Stone, 121 F. Supp.2d at 237. Examples of "cause" sufficient to excuse a petitioner's procedural default are "constitutionally Page 10 ineffective assistance of counsel, interference by government officials rendering compliance with the state procedural rule impracticable, or situations in which the factual and legal basis for the claim was not reasonably available . . . at the time of default." Stone, 121 F. Supp.2d at 237 (citing Murray, 477 U.S. at 488); see also, Glisson v. Mantello, ___ F. Supp.2d ___, 00 CIV. 4773, 2003 WL 22358798, at *9 (S.D.N.Y. Oct. 15, 2003) (citations omitted).

  Geraci has failed to establish cause for his failure to file an application seeking leave to appeal. Significantly, Geraci has never claimed in either the state courts or this action that his appellate attorney rendered ineffective assistance by failing to file a leave application with the Court of Appeals.*fn7 Since Geraci cannot establish cause for his failure to seek leave to appeal, this court need not decide whether he suffered actual prejudice because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are Page 11 demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).

  A final exception to the procedural bar to Geraci's claims exists if there is evidence that the constitutional violations alleged in his petition "has probably resulted in the conviction of one who is actually innocent" of the crime of which he has been convicted. See Murray, 477 U.S. at 49; Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994). However, the court's review of the transcript of Geraci's trial establishes that he is not actually innocent of either charge of which he was convicted.

  Geraci bears the burden of demonstrating that he has exhausted available state remedies with respect to his federal claims. See Cruz v. Artuz, 97-CV-2508, 2002 WL 1359386 (E.D.N.Y. June 24, 2002) (citing Colon v. Johnson, 19 F. Supp.2d 112, 119-20 (S.D.N.Y. 1998); United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442 (2d Cir. 1958)); see also, Ruine v. Walsh, 00 CIV. 3798, 2002 WL 1349713, at *2 (S.D.N.Y. June 19, 2002) (citing Colon.) Nothing before the court indicates that Geraci exhausted his state court remedies concerning any of the claims raised in his petition, or that his procedural default may be legally excused by this court. In light of the foregoing, this court denies Geraci's petition on this Page 12 procedural basis.

  WHEREFORE, based upon the above, it is hereby

  ORDERED, that the Sheriff of the Schoharie County Jail is substituted as the respondent in this action in lieu of the Schoharie County District Attorney; and it is further

  ORDERED, that Geraci's habeas petition is DENIED and DISMISSED; and it is further

  ORDERED, that the Clerk serve a copy of this Decision and Order upon the parties by regular mail; and it is further

  ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).


 *fn2 Officers assigned to the CNET work with confidential informants to purchase illegal drugs in order to facilitate the arrest and prosecution of narcotics traffickers (Tr. at PP. 32-33).

 *fn3 Trooper Missini subsequently placed the substance, which tested positive for the presence of cocaine, in a sealed evidence bag and gave the evidence to a member of the Schoharie Police Department (Tr. at PP. 45-47.)

 *fn4 For each day of Geraci's trial, the court reporter numbered the first page of the transcript as page number one.

 *fn5 Examples of such collateral consequences include the inability to serve as a juror, engage in certain businesses, or vote. Maleng v. Cook, 490 U.S. 488, 491-92 (1 989); Johnson v. Levine, 00 CIV. 8402, 2001 WL 282719, at *1 (S.D.N.Y. Mar. 21, 2001).

 *fn6 Although a party is only permitted thirty days within which to seek leave to appeal following a decision from the Appellate Division, a litigant may seek an extension of that deadline "as long as no more than one year has passed since the running of the original thirty days." Jolly v. Stinson, CV 97-2000, 1998 WL 661472, at *1 (E.D.N.Y. Aug. 5, 1998) (citing CPL § 460.30).

 *fn7 The eighth ground in Geraci's petition might be broadly construed as a claim alleging that the appellate brief filed by his appellate counsel was inadequate. See Pet. at Ground Eight. However, that claim does not contend that appellate counsel wrongfully failed to seek leave to appeal from the Court of Appeals. Id. In any event, Geraci never claimed in the state courts that his appellate counsel rendered ineffective assistance, and an unexhausted claim may not be used to establish cause for the procedural default of an underlying claim. See Zelaya v. Mantello, 00CIV.0865, 2003 WL 22097510, at *5 (S.D.N.Y. Sept. 10, 2003); Santiago v. McGinnis, CIV.00-5870, 2002 WL 31946709, at *4 (E.D.N.Y. Oct. 21, 2002); see e.g., Carey v. Supt., 99-CV-0821, slip op. at 5 (N.D.N.Y. Sept. 29, 2003) (McAvoy, S.J.) (citing Murray, 477 U.S. at 488-89).


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