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
DECISION and ORDER
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
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.
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
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
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).
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.
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.
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
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
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
*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") §
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,
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
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
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
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,
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
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).
IT IS SO ORDERED.
*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
*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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