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MORALES v. SABOURIN

United States District Court, S.D. New York


March 5, 2004.

CLARENCE MORALES, A.K.A. JUSTICE MORALES, Plaintiff, -v- JOHN SABOURIN, Superintendent, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

ORDER

On April 30, 2002, Magistrate Judge Gabriel W. Gorenstein issued a Report and Recommendation ("Report") recommending that the petition of Clarence Morales ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. Petitioner submitted timely objections to the Report. Those objections, however, consist of either conclusory rehashing of issues that have already been decided or frivolous arguments.*fn1 Respondent objects to the Report to the extent it concluded (1) that the petition is not time barred and (2) that a claim with respect to delay in the litigation of an appeal of an order denying a state collateral attack is cognizable on federal habeas review. Page 2

In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court `"need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv.. 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., No. 00 CV 7552, 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to rehash issues that have already been decided should be reviewed for clear error); Camardo v. General Motors Hourly — Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings).

  Judge Gorenstein applied the statutory tolling provisions of the Anti — Terrorism Page 3 and Effective Death Penalty Act of 1996 ("AEDPA") and found the instant petition timely.*fn2 Respondent objects to one aspect of Judge Gorenstein's timeliness calculation: that a state habeas corpus petition filed by Petitioner in 1998 qualifies as a "properly filed" application for State post — conviction review for the purposes of 28 U.S.C. § 2244(d)(2). Accordingly, the Court has reviewed de novo the effect of the 1998 state habeas petition on the timeliness of the petition.

  Respondent argues that Petitioner's 1998 state habeas petition cannot constitute a "properly filed" application for post — conviction relief because, under New York law, the writ of habeas corpus may not be used to review issues that could have been raised by direct appeal or by collateral attack in the court of conviction. People ex rel. Pearson v. Garvin. 622 N.Y.S.2d 464 (2d Dep't 1995). In Bennet v. Artuz, 199 F.3d 116 (2d Cir. 1999), the Second Circuit rejected a similar argument with respect to certain claims that had been raised in a motion to vacate a judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") section 440.10. The respondent in Bennet argued that the section 440.10 motion at issue was not a properly filed application for post — conviction relief for the purposes of 28 U.S.C. § 2244 because the claims raised in the motion either were already decided, or should have been raised, on direct review. Id. at 121. The Second Circuit disagreed, finding that the question of whether a post — conviction application is procedurally barred under a state law such as CPL 440.10 is independent from a federal court's obligation to determine whether the application is "properly filed." Id. at 122. The latter determination turns on whether an application for post — conviction Page 4 relief is "recognized as such under governing state procedures." Id. at 123. The Supreme Court affirmed the decision, explaining that an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws prescribing "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennet, 531 U.S. 4, 8 (2000). The Supreme Court found that the procedural bar at issue, that is, CPL 440.10(2)(a) and (c),*fn3 sets forth conditions to obtaining relief, not conditions to filing. Id. at 11.

  The limitation on the scope of habeas relief under New York law that is invoked by Respondent here, like the CPL provisions at issue in Bennet, does not preclude the filing of a state habeas petition.*fn4 Indeed, the issue Respondent raises, that habeas relief is unavailable for claims that could have been raised on direct review or in a CPL 440.10 motion, is substantially identical to the procedural bar addressed by the Supreme Court in Artuz v. Bennet. Respondent points out that Petitioner's 1998 petition was denied as procedurally barred, and argues that that determination should control the Court's decision here. Review of the state court's decision on Page 5 the 1998 petition, however, only serves to clarify that the petition was denied because of failure to satisfy what the Artuz v. Bennet Court characterized as conditions to obtaining relief, and not because of any deficiencies in the form or timing of the petition. See Decision & Order, annexed to Resp.'s Am. Mem. of Law as Ex. J ("The remedy of habeas corpus does not lie under the circumstances presented [that is, where claims could have been or were raised and decided on direct review or by CPL 440.10 motion]." (emphasis added)). Accordingly, the Court finds that the 1998 state habeas petition was a "properly filed" application for post — conviction relief for the purposes of 28 U.S.C. § 2244(d)(2).*fn5 In light of this finding, and because the Court adopts the other aspects of the timeliness calculation in the Report as not clearly erroneous, the Court finds that the instant petition is timely.

  The Court has reviewed thoroughly the remainder of Judge Gorenstein's well — reasoned Report and finds no clear error on the face of the record. The Court adopts the Report for the reasons stated therein, except to the extent the Report concludes that delay in the decision of an appeal of the denial of a CPL 440.10 motion is cognizable on federal habeas review.*fn6 Accordingly, the petition for writ of habeas corpus is denied. Page 6 Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  Magistrate Judge Gorenstein's Report follows.

  SO ORDERED.

  Clarence (a/k/a Justice) Morales, an inmate at the Bare Hill Correctional Facility, petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition should be denied.

 I. FACTUAL BACKGROUND

  A. Arrest. Indictment and Plea

  Morales was arrested on February 2, 1994, and subsequently indicted for one count of Burglary in the Second Degree. See Amended Memorandum of Law and Supplemental Exhibits Page 7 In Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Am. Mem."), dated December 2001, at 2; Memorandum Of Law In Support Of Rebuttal To Opposition for A Writ of Ha[b]eas Corpus ("Morales Mem."), dated August 4, 2001, at 2. Morales was accused of taking a compact disc player from an apartment at Columbia University. On June 6, 1994, New York Supreme Court Justice Herbert I. Altman dismissed the indictment following the prosecution's concession that petitioner had not been afforded his right under New York Criminal Procedure Law ("CPL") § 190.50(5)(a) to testify before the grand jury. See Decision on Morales' Motion to Dismiss Indictment 851/94, reproduced in the Answer, dated July 5, 2001, at Ex. I. At the same time, the State was granted leave to re — present the case to another grand jury. Id. On September 16, 1994, the grand jury again indicted Morales on the charge of Burglary in the Second Degree (Indictment Number 8968/94).

  After waiting for trial for more than a year, Morales moved to dismiss the indictment alleging a denial of his right to a speedy trial under CPL § 30.30. See Brief for Defendant — Appellant to the Supreme Court of New York, Appellate Division: First Department ("Morales App. Brief) (reproduced as Answer, Ex. D) at 3. On February 6, 1995, Justice Altman denied Morales' motion to dismiss the indictment. See Brief for Respondent to the New York Supreme Court Appellate Division: First Department ("Respondent App. Brief) (reproduced as Answer, Ex. F) at 2; Morales App. Brief at 3. On the morning of February 7, 1995, the People offered Morales the opportunity to plead guilty to Attempted Burglary in the Second Degree with a sentence of six years to life, stating that the offer would be withdrawn as soon as the jury was sworn, which was expected to be the same day. Morales App. Brief at 3. Later that day Morales agreed to the People's offer and pleaded guilty to Attempted Burglary in the Second Degree Page 8 before Justice Alien Alpert. Id. at 3-4; Respondent App. Brief at 2.

  On April 3, 1995, just before his sentencing date, Morales filed a motion requesting that the court permit him to withdraw his guilty plea on the ground that his counsel had erroneously informed him that his section 30.30 speedy trial motion would survive the plea and could be raised on appeal. Morales App. Brief at 4; Respondent App. Brief at 5-6. Under these circumstances, Morales argued, the plea was not knowing and voluntary. Morales App. Brief at 4. On April 11, 1995, Justice Alpert denied Morales' § 30.30 motion and sentenced him, according to the terms of the plea agreement, to six years to life. Morales App. Brief at 4; Respondent App. Brief at 2.

  B. Morales' First Collateral Motion and Direct Appeal

  By notice of motion dated October 25, 1995, Morales moved pro se to vacate his judgment of conviction pursuant to CPL § 440.10. See Notice of Motion, reproduced in Answer, Ex. A. In his supporting affidavit, he argued that his judgment should be vacated because his plea had been coerced, he had been denied effective assistance of counsel, and the grand jury proceedings were defective. See Affidavit in Support of Motion to Vacate Judgment[] Pursuant to CPL § 440.10, reproduced in Answer, Ex. A. On June 14, 1996, Justice Alpert ruled that "[b]ecause the judgment is pending appeal and sufficient facts appear on the record to permit adequate review on appeal of all of the issues raised by [Morales], [his] motion must be denied." See Decision, reproduced as the Answer, Ex. C at 1-2. Justice Alpert also denied Morales' ineffective assistance of counsel and coercion claims on the merits. Id. at 2. It appears that Morales never sought leave to appeal the denial of this motion.

  In his direct appeal of his judgment of conviction to the Appellate Division, Morales' Page 9 new appellate counsel argued that because trial counsel erroneously informed Morales that his speedy trial claim would survive his plea, Morales was denied his Sixth Amendment right to effective assistance of counsel and the plea was not knowing and voluntary. Morales App. Brief at 5-6. Morales also submitted a pro se supplemental brief in which he made the additional arguments that the superseding indictment should have been dismissed on speedy trial grounds and the grand jury proceedings were defective, denying him due process. See Supplemental Brief, dated December 29, 1996, reproduced as Answer, Ex. E.

  On May 20, 1997, the Appellate Division affirmed Morales' conviction. People v. Morales. 239 A.D.2d 254 (1st Dep't 1997). The court ruled that Morales knowingly and voluntarily pled guilty and that "there is nothing in the record of the plea proceedings that indicates that defendant was denied effective assistance of counsel because defense counsel induced defendant to plead guilty by providing him with erroneous advice." Id. at 254. In addition, the court ruled that Morales' claim of defective grand jury proceedings was unpreserved and that by pleading guilty he waived any challenge to the grand jury proceedings. Id. In the alternative, the court rejected this claim on the merits, noting that the People had called witnesses who had been at the scene of the arrest, Morales was informed of his right to testify before the grand jury, and he did in fact testify before the second grand jury. Id. Finally, the court ruled that Morales' claim that his waiver of immunity before testifying before the grand jury was not a knowing one was unsupported by the record. Id. On July 10, 1997, the Court of Appeals denied Morales' motion for leave to appeal the Appellate Division's ruling, 90 N.Y.2d 896, and denied reconsideration on October 2, 1997. 90 N.Y.2d 1013.

  C. The 1998 State Habeas Application Page 10

  On June 2, 1998, Morales filed a petition for a state writ of habeas corpus, dated April 22, 1998, in the New York Supreme Court, Franklin County. See Petition for Writ of Habeas Corpus, reproduced as Am. Mem., Supplemental Ex. G. In his supporting affidavit, Morales claimed that the prosecutor illegally re — presented the second indictment to the grand jury, the grand jury proceedings were defective, and his counsel was ineffective. See Affidavit in Support of Writ of Habeas Corpus, reproduced as Am. Mem., Supplemental Ex. G. On September 24, 1998, New York Supreme Court Justice John A. Lahtinen denied Morales' petition. See Decision and Order, reproduced as Am. Mem., Supplemental Ex. J. Justice Lahtinen stated that a motion under CPL Article 440 made to the court where Morales was convicted — not a state habeas petition — was the proper vehicle to advance his claims and "[departure from traditional orderly proceedings is only warranted where dictated by `practicality and necessity[,]' which is not warranted here." Id. He also noted that because the prosecutor was granted leave to re — present the indictment, the second indictment was not jurisdictionally defective. Id. Morales apparently did not appeal this decision.

  D. The 1999 Section 440 Motion

  By notice of motion dated January 15, 1999, Morales again moved to vacate the judgment of conviction pursuant to CPL § 440.10 (the "1999 section 440 motion"). See Notice of Motion To Vacate Judgment, reproduced in Answer, Ex. I. In his supporting affidavit, Morales argued that the second indictment was a "fraud" and "forgery" and was illegally re — presented. See Affidavit in Support of Motion Indictment No. 9868/94, reproduced in the Answer, Ex. I. On February 17, 1999, New York Supreme Court Justice Laura Visitacion — Lewis denied the motion stating that "[b]ecause this claim could have been raised on direct appeal, it cannot be considered Page 11 on a post — judgment motion." See Answer, Ex. J. She also denied the claim on the merits, ruling that because the court explicitly granted the prosecutor permission to resubmit the charge to the grand jury, a procedure authorized by statute, CPL §§ 210.20(1)(c) and (4), the second indictment, to which Morales pled guilty, was legally obtained. See Answer, Ex. J.

  Morales sought leave to appeal to the Appellate Division (First Department) the denial of the section 440 motion and that Court granted leave to appeal on June 21, 1999. See Certificate Granting Leave, reproduced as Answer, Ex. K. The certificate granting leave to appeal stated that within 15 days of the order, Morales had to file a notice of appeal. Id. Rather than file this notice, Morales waited until December 11, 2000, and then wrote to the First Department.*fn7 In his letter, he inquired about the status of his case and suggested that he expected the Appellate Division to assign counsel. See Letter to the Appellate Division, received December 14, 2000, reproduced in Answer, Ex. L. The Clerk's Office, construing the letter as a motion requesting poor person's relief and seeking the assignment of counsel, placed it on the court's motion calendar. See Answer, Ex. L (first document). The District Attorney's office opposed the motion and cross — moved to dismiss because the required notice of appeal had not been filed. See Affirmation in Support of Motion to Dismiss Appeal, reproduced in Answer, Ex. M. On March 15, 2001, the Appellate Division granted Morales' motion and appointed Jonathan Svetkey as Page 12 counsel for purposes of appeal. It also denied the district attorney's cross — motion to dismiss the appeal. See Order, reproduced as Answer, Ex. N.

  By notice of motion dated August 23, 2001, Svetkey moved for an order relieving him as counsel. See Notice Of Motion, reproduced in Am. Mem., Supplemental Ex. A. On October 18, 2001, the Appellate Division denied Svetkey's motion without prejudice to renewal of the motion upon the filing of a brief pursuant to People v. Saunders, 52 A.D.2d 833 (1st Dep't. 1976), advising the court that no non — frivolous issues could be raised on appeal. See Order, reproduced as Am. Mem., Supplemental Ex. C. By notice of motion dated October 31, 2001, Svetkey renewed his motion and filed the Saunders brief arguing that no non — frivolous issues could be raised on appeal. See Notice of Motion, reproduced in Am. Mem., Supplemental Ex. D; Brief Filed Pursuant to Anders v. California. 368 U.S. 738 (1967), reproduced as Am. Mem., Supplemental Ex. E. The District Attorney's office took no position regarding Svetkey's motion. On January 24, 2002, the Appellate Division, First Department, unanimously affirmed Justice Visitacion — Lewis' decision, granted Svetkey's motion to withdraw as counsel, and ruled that there are "no non — frivolous points which could be raised on this appeal." People v. Morales. 736 N.Y.S.2d 229 (1st Dep't 2002). Morales did not attempt to appeal this decision to the Court of Appeals. See Letter from Morrie Kleinbart, dated March 21, 2002.

  E. The Instant Petition

  On April 23, 2000, while the appeal of his 1999 section 440 motion was pending, Morales executed the present petition. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody, filed November 17, 2000 ("Petition"). The petition was received by the Court's Pro Se Office on May 22, 2000 and was filed on November 17, 2000. In Page 13 this petition, Morales argues (1) that his conviction was obtained in violation of the double jeopardy clause because the grand jury re-indicted him after the original indictment was dismissed; (2) that the indictments were "fraud[ulent]" and (3) that he was denied his right to appeal the decision on his 1999 section 440 motion because of the Appellate Division's delay in assigning him counsel. Petition at 5.

  On November 17, 2000, Chief District Judge Michael B. Mukasey issued an order directing Morales to show cause by affirmation why his petition should not be dismissed as time barred or for failure to exhaust state remedies. On January 11, 2001, Morales filed his affirmation, suggesting that his petition was not time barred due to his extensive litigation in the New York state courts and that he exhausted his state remedies by presenting his current claims to those courts. Petitioner's Affirmation, dated December 30, 2000, at 1-2.

  Following the referral of the petition to the undersigned for a report and recommendation, the respondent filed an Answer and memorandum of law in support of his Answer, which included the argument that the petition was untimely. This Court issued an order directing the petitioner to include a fact section within that memorandum of law and to include a discussion of the effect of Morales' filing of his 1998 state habeas corpus petition on the respondent's argument that the petition was untimely. An amended memorandum of law was filed on December 14, 2001.

 II. DISCUSSION

  A. The Limitation Period

  1. Applicable Law

  Federal habeas law provides a one year limitation period for a petition for a writ of habeas Page 14 corpus. 28 U.S.C. § 2244(d)(1). The relevant subsection provides that the limitation period runs from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In addition, this limitation period is tolled during the time in which "a properly filed application for State post — conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2).

  In the present case, the Appellate Division affirmed Morales' conviction on May 30, 1997. The Court of Appeals denied, upon reconsideration, his leave to appeal on October 2, 1997. Morales' judgment became final on December 31, 1997, the date on which the ninety day period within which Morales could have sought review by the United States Supreme Court expired. See Williams v. Artuz. 237 F.3d 147, 151 (2d Cir.). cert. denied. 122 S.Ct. 279 (2001). Therefore, Morales had one year from that date, or until December 31, 1998, to file his federal habeas petition.

  The present petition, however, was not executed until April 23, 2000, and thus cannot be deemed to have been filed any earlier than that date. Therefore, unless Morales adequately tolled the limitation period by properly filing an "application for State post — conviction or other collateral review" (or could qualify for equitable tolling), his petition is untimely under the statute.

  2. Morales' Applications Pending after December 31, 1997

  Because the limitation period did not begin to run until December 31, 1997, the state applications filed and resolved prior to this date are irrelevant in determining whether the limitation period was tolled. Only pending applications may toll the limitation period. See 28 U.S.C. § 2244(d)(2); Coleman v. Miller. 2000 WL 1843288, at * 6 (E.D.N.Y. Oct. 16, 2000). Page 15 Morales filed a petition for a state writ of habeas corpus on June 2, 1998.*fn8 Justice Lahtinen denied the petition on September 24, 1998. If this state habeas petition was a "properly filed application for State post — conviction or other collateral review" within the meaning of § 2244(d)(2), then the limitation period tolled from June 2, 1998, until at least September 24, 1998, the date appellate review became unavailable.*fn9 Therefore, Morales would have had an extra 115 days after December 31, 1998 (the limitation period expiration date absent tolling), or until April 25, 1999, to file his federal habeas petition.

  It is undisputed that Morales' 1999 section 440 motion, filed January 15, 1999, tolled the Page 16 limitation period as of that date.*fn10 This is because section 440 motions are "applications for State post — conviction or other collateral review" under § 2244(d)(2). See generally Bennett, 199 F.3d at 119-123. Morales' motion was awaiting decision by the Appellate Division when Morales filed the instant federal habeas petition in 2000 and thus his section 440 motion was "pending" for section 2244(d)(2) purposes. See, e.g. Robinson, 163 F. Supp.2d at 164 ("[a] case is considered `pending' when it remains undecided, awaiting decision"). Therefore, because the 1999 section 440 motion was pending from January 15, 1999, until at least January 24, 2002 (when the Appellate Decision ruled on the appeal) Morales' federal habeas petition filed in 2000 would be timely if his 1998 state habeas petition can toll the limitation period from December 31, 1998 until January 15, 1999.

  If, on the other hand, Morales' 1998 state habeas petition did not toll the limitation period, then the limitation period expired on December 31, 1998. Morales' section 440 motion, filed on January 15, 1999, could not revive the limitation period. See Smith v. McGinnis. 208 F.3d 13, 17 (2d Cir.) (properly filed state relief application tolls the limitation period but does not reset the date from which the period begins to run), cert. denied, 531 U.S. 840 (2000). Thus, the timeliness of the instant petition turns on whether Morales' 1998 state habeas petition was a "properly filed application for State post — conviction or other collateral review" under 28 U.S.C. § 2244(d)(2).

  3. Effect of the State Habeas Petition

  Neither the Supreme Court nor the Second Circuit has specifically addressed the issue of Page 17 whether a New York state habeas petition is an "application for State post — conviction or other collateral review with respect to the pertinent judgment or claim" under § 2244(d)(2). To answer this question, we first examine the nature of the habeas corpus remedy under New York State law, the procedural requirements of which are codified in New York CPLR Article 70.

  In People ex rel. Keitt v. McMann. 18 N.Y.2d 257 (1966), the New York Court of Appeals rejected its earlier "narrow view" that habeas corpus was unavailable if "the conviction was by a court which had jurisdiction over the person of the defendant and over the crime charged, as well as the power to impose the sentence which was meted out." Id. at 261. Instead, the Court articulated a new rule that habeas corpus is available "to test a claim that the introduction of certain evidence violated both due process and the privilege against self incrimination." Speaking broadly, the Court opined that

habeas corpus is an appropriate proceeding to test a claim that the relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right in a criminal prosecution, including, but not limited to. the right to be tried and sentenced by a court having jurisdiction over the charge and the person.
18 N.Y.2d at 262 (emphasis added).

  Unquestionably, the New York courts have placed limits on the availability of that remedy, including the limitation that habeas is not available where review is available by way of direct appeal or a motion to challenge a judgment of conviction under section 440. See, e.g. People ex rel. Johnson v. Lacy, 243 A.D.2d 915, 915 (3d Dep't 1997). leave to appeal denied. 91 N.Y.2d 806 (1998). The Keitt case, however, nonetheless suggests that the habeas remedy constitutes one method to obtain "post — conviction or other collateral review with respect to the pertinent judgment or claim" under 28 U.S.C. § 2244 even if it is not the only method to obtain such review and even if its use has been barred in certain circumstances (including Morales'). Page 18 Keitt characterizes the habeas corpus remedy as one of "great flexibility and great scope," 18 N.Y.2d at 263, and there is no definitive ruling from the New York courts that CPL Article 440 has completely supplanted the habeas corpus remedy as a method of reviewing a claim that attacks the legality of a prisoner's custody.

  The respondent advances essentially two arguments seeking to avoid this conclusion. First, he claims that the New York writ of habeas corpus is solely to "challenge the legality of [the prisoner's] detention and obtain release" and that it "does not serve as an attack on the judgment of conviction itself." Am. Mem. at 10. The latter statement is without citation and is certainly not supported by a 1945 decision of the New York Court of Appeals that has never been explicitly overruled. In the context of whether a convicted person could appeal the denial of a motion to vacate a judgment of conviction, the Court of Appeals in People v. Gersewitz, 294 N.Y. 163 (1945) held that:

In [habeas corpus] proceedings the petitioner seeks to invoke the power of a court, other than that in which the prosecution was had, to vacate a judgment or order made in the course of the criminal prosecution by a court without jurisdiction or which failed to exercise, or perhaps did not have, adequate authority to protect the defendant in his constitutional rights. By motion to the court, in which a conviction was had, to vacate its own judgment and to discharge a defendant from custody thereunder or to grant a new trial, the defendant invokes the power of the court to vindicate the defendant's constitutional rights in the criminal prosecution.
Id. at 168 (emphases added). This statement is consistent with the theory that while the state habeas corpus remedy is directed toward the legality of the prisoner's detention, see, e.g., People ex rel. Robertson v. New York State Div. of Parole, 67 N.Y.2d 197, 201 (1986) ("[t]he purpose of [New York's] habeas corpus is to test the legality of the detention of the person who is the subject of the writ"), the remedy also could potentially include the vacatur of the underlying judgment of conviction that led to the imprisonment. Page 19

  In any event, the respondent's argument misses the point because nothing in the language of section 2244(d)(2) suggests that its tolling is unavailable for applications that attack only the custody and not the conviction itself. On the contrary, the generic phrase, "State post — conviction or other collateral review of a judgment or claim." suggests that Congress intended that any proceeding that reviews a "claim" contained in a federal habeas petition triggers the tolling provision. The State habeas corpus remedy unquestionably has the potential to "review [a] claim" that may be brought in a federal habeas proceeding.

  This conclusion is bolstered by the Supreme Court's decision in Duncan v. Walker. 533 U.S. 167, 177 (2001), which concluded that Congress may have used the terms "post — conviction" and "other collateral review" to encompass the diverse terminology states use to describe various methods of collateral review. The Court noted, for example, that Florida makes a distinction between a motion to vacate the judgment, which is referred to as a "motion for post — conviction relief and other vehicles for collateral review, such as a state petition for habeas corpus. Id. The Court concluded that "Congress may have refrained from exclusive reliance on the term `post — conviction' so as to leave no doubt that the tolling provision applies to all types of state collateral review available after a conviction and not just those denominated `post — conviction' in the parlance of a particular jurisdiction." Id. (emphasis added).

  The respondent recognizes that other circuits have assumed that a state habeas remedy may qualify for section 2244(d)(2) tolling. See, e.g., Barnett v. Lemaster, 167 F.3d 1321, 1322-23 (10th Cir. 1999) (New Mexico); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (California), cert. denied, 529 U.S. 1104 (2000). In each instance, the state remedy tests the legality of custody. See New Mexico Rules of Crim. Proc. 5-802; Cal. Pen. Code § 1473. The Page 20 respondent argues that these cases do not prove that a state habeas remedy comes within section 2244(d)(2) because these state habeas remedies are the only means of post — conviction review and thus "mirror New York's CPL Article 440 practice, not its Civil Practice Law and Rules ("CPLR") Article 70 habeas corpus practice." Am. Mem. at 13. This argument is irrelevant, however, because section 2244(d)(2) does not provide that only one means of post — conviction or other collateral review can serve to toll the limitation period. Whether a New York habeas petition attacks the actual judgment or more generally the legality of the confinement following a judgment, it is unquestionably a type of "collateral review" available in some instances after a conviction. For this reason, the remedy is included in the broad language of section 2244(d)(2).

  The respondent's remaining argument appeals to "logic[]." Am. Mem. at 11. Citing Duncan v. Walker, he asserts that the purpose of the tolling provision is to afford the habeas petitioner the opportunity to exhaust state remedies without jeopardizing his ability to meet the one — year deadline. He argues that "if it is clear that the state motion at issue cannot serve to exhaust state remedies, it cannot serve to toll the limitations period either." Am. Mem. at 11. Duncan. however, at no point states (let alone holds) that the only "properly filed application[s] for State post — conviction or other collateral review" are those that exhaust State remedies. It states only that section 2244(d)(2) "promotes" the exhaustion of state remedies. 531 U.S. at 179. Tellingly, even though the habeas provisions elsewhere address exhaustion specifically, see, e.g.. 28 U.S.C. § 2254(b)(1), (c), Congress did not tie the tolling provision to the exhaustion requirement. The respondent's effort to do so thus finds no basis in the statutory language.*fn11 Page 21

  Moreover, the Supreme Court's reasoning in Bennett implicitly rejects the argument that only those petitions that exhaust remedies qualify as "properly filed applications] for State post — conviction or other collateral review." In Bennett, the petitioner moved to vacate his judgment of conviction under CPL § 440.10. See 199 F.3d at 117-18. The motion was denied and four years later, the petitioner moved again to vacate the judgment pursuant to CPL § 440.10. Id. at 118. The second motion was denied because petitioner's claims were procedurally barred under New York law inasmuch as they either had been or could have been raised on the direct appeal. The State of New York argued that because the claims were procedurally barred, they were not "properly filed applications" within the meaning of 28 U.S.C. § 2244(d)(2) and thus could not serve to toll the limitation period. The Second Circuit rejected this argument. It reasoned that "determining whether a pending — state — court motion is procedurally barred under a state law such as CPL § 440.10 is beyond the appropriate role of a federal court in addressing whether a state post — conviction was `properly filed.'" Id. at 122. The Supreme Court upheld this ruling, holding that the term "properly filed" means any filing that conforms with State procedural requirements. 531 U.S. at 8. Thus, even though the petitioner's second section 440.10 motion was completely unnecessary to exhaust his claim, it tolled the limitation period. Id. at 11.

  Just as was the case in Bennett, Morales' post — conviction application was unnecessary to exhaust his State remedies. Bennett makes clear, however, that the lack of exhaustion does not prevent the application from constituting an "application for State post — conviction or other collateral review." To do otherwise "would involve federal courts in making determinations as to the proper outcome of pending state proceedings based on state law when a state court is positioned to make the very same decision." Bennett, 199 F.3d at 122. Page 22

  In sum, a New York state habeas corpus application is an "application for State post — conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). Consequently, Morales' 1998 New York habeas petition tolled the limitation period sufficiently to render the instant federal habeas petition timely.

  B. Morales' Three Claims

  1. Double Jeopardy

  Habeas corpus relief is available only where the petitioner has exhausted the remedies available in the state courts or there is either an absence of available state corrective process or circumstances rendering such process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b). To satisfy this exhaustion requirement, a petitioner must present the substance of the same federal constitutional claim raised in his federal petition to the highest court of the relevant state. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001).

  When a claim has never been presented to a state court, a federal court may find that there is an absence of available state corrective process under § 2254(b) "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be fufile." Id. at 90 (citing Reyes v. Keane,118 F.3d 136, 139 (2d Cir. 1997)). In such a case the federal court may deem the procedurally barred claim to be "exhausted" but it must also deem the claim procedurally defaulted. Coleman v. Thompson. 501 U.S. 722, 735 n.1 (1990); Aparicio, 269 F.3d at 90. Federal courts are prohibited from reviewing a procedurally defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice (that is, that the petitioner is actually innocent). See, e.g., Harris v. Reed. 489 U.S. 255, 262 (1989); Aparicio. Page 23 269 F.3d at 90.

  Morales claims that a violation of the protection against double jeopardy occurred in his case. See Petition at 5. Although it is not clear from the petition or his memorandum of law on what basis he makes this claim, he appears to be saying it occurred as a result of his re-indictment following the dismissal of the first indictment. The record supporting this claim was obviously available to Morales as part of his direct appeal since the re-indictment preceded his guilty plea. Nonetheless, Morales never raised the claim and, under New York law, his "unjustifiable failure" to do so means he cannot raise it at all. See N.Y. Crim. Proc. Law. § 440.10(2)(c). Because the New York courts would find Morales double jeopardy claim to be procedurally barred, Morales "no longer has `remedies available' in the New York state courts under 28 U.S.C. § 2254(b), and [thus] he has met the statutory exhaustion requirements for presenting a habeas petition to the federal courts." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); see also Washington v. James. 996 F.2d 1442, 1447 (2d Cir. 1993) (finding procedural default under CPL § 440.10(2)(c) for a claim not raised on direct appeal), cert. denied. 510 U.S. 1078 (1994). Unless Morales demonstrates cause and prejudice for the default or that failure to consider the claim will result in a miscarriage of justice, this Court may not examine the merits of this claim and it must be dismissed. See Aparicio. 269 F.3d at 90.

  Morales has not attempted to demonstrate either cause or prejudice for the default and nothing in his submissions suggests that he could meet his burden of doing so. Nor would the failure to consider Morales' double jeopardy claim result in a fundamental miscarriage of justice. A "miscarriage of justice occurs" only "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier. 477 U.S. 478, 496 (1986); Page 24 see Sawyer v. Whitley. 505 U.S. 333, 336 (1992) (in order to show a fundamental miscarriage of justice, "one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty]."). No such showing has been made in this case. Therefore, this Court is barred from reviewing the double jeopardy claim.*fn12

  2. Fraudulent Indictments Claim

  Morales also argues that the indictments were fraudulently obtained, though he gives no specifics of why he believes this to be the case. See Petition at 5. While a version of this claim was raised in Morales' 1999 section 440 motion, it was not raised on his direct appeal. Morales provides no explanation for why he failed to raise this claim on direct appeal, but it was presumably available to him or his counsel at that time because the indictments preceded his guilty plea. As already noted, where a habeas petitioner fails to raise a claim on direct appeal, the New York courts will find that claim procedurally barred. Washington. 996 F.2d at 1447; accord Grey. 933 F.2d at 120. That Morales may have raised this claim in his 1999 section 440 motion is irrelevant because the section 440 motion obviously could not cure the procedural bar contained in CPL § 440.10(2)(c). Indeed, the Supreme Court ruling on that claim explicitly so held. See Decision, dated February 17, 1999, reproduced as Answer, Ex. J ("[b]ecause this claim could have been raised on direct appeal, it cannot be considered on a post — judgment motion."). As with the previous claim, Morales has shown no cause for his failure to raise this claim Page 25 properly, prejudice, or actual innocence. Thus, this claim is not cognizable on habeas review.*fn13

  3. Appellate Delay Claim

  Morales also complains about the length of time it took for the Appellate Division to rule on his 1999 section 440 motion, based in part on its delay in appointing him counsel. See Petition at 5. This claim has never been presented to the state courts and thus would appear to be unexhausted. In cases involving the delay of a direct appeal, however, the Second Circuit has expressed doubt as to whether there exists a procedure to present such a claim to New York courts, meaning there could be an "absence of a state corrective process" under 28 U.S.C. § 2254(b), which excuses the exhaustion requirement. See Mathis v. Hood. 851 F.2d 612, 615 (2d Cir. 1988) ("there is no [New York] state remedy available to petitioner [regarding his delay of appeal claim] and even if such remedy existed, circumstances render the state corrective process ineffective"). Thus, the Second Circuit has found the exhaustion requirement to be satisfied in such cases, notwithstanding the failure to bring the appellate delay claim before the state courts. See Brooks v. Jones. 875 F.2d 30 (2d Cir. 1989); Mathis. 851 F.2d. at 615. While the delay here involves the appeal of a collateral attack rather than a direct appeal, the same principles that excuse exhaustion as to a direct appeal would presumably apply to a collateral attack and the Page 26 respondent, in any event, has not argued that this claim is unexhausted. Accordingly, the Court will address the merits of this claim.*fn14

  "With respect to whether a given delay [of a direct appeal] constitutes a due process violation, [the Second Circuit] has noted that the analytical framework set forth in Barker v. Wingo, 407 U.S. 514 (1972), is generally applicable." Elcock v. Henderson. 947 F.2d 1004, 1007 (2d Cir. 1991). Following Barker, the Second Circuit typically focuses on the length of the delay, the reason for the delay, whether the petitioner asserted his right to a speedy appeal and prejudice to the petitioner. Brooks. 875 F.2d at 31. The Court has held, however, that once an appeal has been decided — as is true in Morales' case — there is no remedy for any past delay unless the petitioner can show prejudice. Mathis v. Hood. 937 F.2d 790, 794 (2d Cir. 1991).

  There was no prejudice to Morales resulting from any delay in the adjudication of his appeal. `"[A]ppellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different.'" Id. The record does not indicate, nor does Morales allege, that but for the delay the result of the appeal would have been different. Indeed, given the fact that both Morales' counsel and the Appellate Division found that there were no non — frivolous issues that could be raised on appeal, it appears that no amount of delay could have resulted in prejudice to Morales.

  Nor has Morales shown that he experienced "unnecessary anxiety and concern," Elcock. 947 F.2d at 1008, as a result of any delay in the adjudication of the appeal inasmuch as it was Page 27 Morales himself who caused the lion's share of the delay. As previously discussed, Morales' certificate granting leave explicitly informed him that he was required to file a notice of appeal within fifteen days of the June 21, 1999, grant of leave, as required by CPL § 460.10(4)(b). See Answer, Ex. K. Morales took no action, however, until December 14, 2000, when he wrote to the Appellate Division, inquiring about the status of his case and seeking assigned counsel. See Answer, Ex. L. Thus, of the nearly three years between the date of the Supreme Court's decision on the section 440 motion (February 17, 1999) and the date the appeal was ultimately adjudicated (January 24, 2002), approximately half that time was caused by Morales' failure to file a notice of appeal. Because there is no right to counsel for collateral attacks on convictions, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), any fault for the delay in the appeal must be attributed to Morales.

 III. CONCLUSION

  The petition for a writ of habeas corpus should be denied.

  Notice of Procedure for 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 have ten (10) days from service of this Report to file any 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 extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Page 28 Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn. 474 U.S. 140, 155 (1985).


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