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
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.
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
Judge Gorenstein applied the statutory tolling provisions of the Anti
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
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
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
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
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.
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
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
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
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
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
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
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
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.
A. The Limitation Period
1. Applicable Law
Federal habeas law provides a one year limitation period for a
petition for a writ of habeas
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).
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
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
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
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').
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.
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
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
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
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
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.
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.
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.
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);
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
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
respondent, in any event, has not argued that this claim is
unexhausted. Accordingly, the Court will address the merits of this
"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
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.
The petition for a writ of habeas corpus should be denied.
Notice of Procedure for Filing of Objections to this Report and
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
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).