The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
By application dated February 17, 2004, Dequan Williams ("Williams")
petitioned the court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In his petition, Williams asserts that his confinement
by New York state is unlawful because he received ineffective assistance
from both trial and appellate counsel.*fn1 Williams, who admits that he
has not exhausted his available state remedies with respect to either of
these claims, seeks a stay of his petition so that he might return to the
relevant state courts to pursue exhaustion. For the reasons set forth
below, I recommend that Williams' motion to stay his habeas corpus
petition be denied and that the petition be dismissed. II. BACKGROUND
In June 2001, Williams was convicted for robbery in the second degree
in violation of N.Y. Penal Law § 160.10, and sentenced to nine and
one-half years' imprisonment. Williams appealed from the judgment of
conviction to the New York State Supreme Court, Appellate Division, First
Department. On October 8, 2002, the Appellate Division confirmed
Williams' conviction unanimously. See People v. Williams. 298 A.D.2d 163,
751 N.Y.S.2d 170 (App. Div. 1st Dep't 2002). Williams applied for leave
to appeal to the New York Court of Appeals. That application was denied
on December 2, 2002. See People v. Williams. 99 N.Y.2d 566,
754 N.Y.S.2d 219 (2002). The instant application for habeas corpus relief
was filed timely on February 24, 2004.
A habeas corpus petition brought by a state prisoner shall not be
granted unless "the applicant has exhausted the remedies available in the
courts of the State; or . . . there is an absence of available State
corrective process; or . . . circumstances exist that render such process
ineffective to protect the rights of the applicant."
28 U.S.C. § 2254(b)(1)(A) and (b).
In a memorandum of law submitted in support of his petition, Williams
states that "[t]rial counsel failed to investigate the totality of
circumstances regarding the alleged robbery and why the third person
[alleged to be involved in the robbery] was released and the stolen items
never located." Because Williams' claim of ineffective assistance of
trial counsel appears to be based, at least in part, on evidence outside
the trial record, under New York law, Williams could raise this claim by
way of a New York Criminal Procedure Law ("CPL") § 440.10 motion to
vacate the judgment of conviction. See, e.g. Pratt v. Greiner.
306 F.3d 1190, 1197 n.2 (2d Cir. 2002) (citing Caballero v. Keane. 42 F.3d 738, 740-41 [2d Cir. 1994])(noting
that an ineffective assistance of trial counsel claim involving matters
outside the trial record was unexhausted because New York procedures
remained available pursuant to CPL § 440.10); Rowe v. People of the State
of New York. No. 99 Civ. 12281, 2002 WL 100633, at *2-3 (S.D.N.Y. Jan.
25, 2002)(same). In addition, Williams' claim of ineffective assistance
of appellate counsel could be raised by way of an application for a writ
of error coram nobis. See Cowan v. Artuz. 96 F. Supp.2d 298, 304
(S.D.N.Y. 2000)(citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623
)(finding that under New York law a coram nobis proceeding is the
only available and appropriate procedure to review a claim of ineffective
assistance of appellate counsel and there is no time limit for applying
for the writ). Furthermore, petitioner has not shown that circumstances
render those processes ineffective to protect his rights. Therefore,
petitioner must show that he has satisfied the exhaustion requirement with
respect to the claims raised in his habeas corpus petition.
To satisfy the exhaustion doctrine, a habeas corpus petitioner must
"fairly present" his or her federal claim to the highest state court from
which a decision can be rendered. Dave v. Attorney General of New
York. 696 F.2d 186, 190-191 (2d Cir. 1982). Williams admits that he
has failed to exhaust his available state court remedies with respect to
the two claims raised in his habeas corpus petition by fairly presenting
the claims to the highest available state court. However, Williams
requests that his petition be stayed in order to give him the opportunity
to cure this defect in his application.
Under Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied.
534 U.S. 1015, 122 S.Ct. 506 (2001), if Williams' petition contained both
exhausted and unexhausted claims, a stay of the exhausted portion of the petition pending exhaustion of
state remedies as to the other claim(s) raised in the petition would be
mandated. However, since Williams' petition contains only unexhausted
claims, this Court has no basis to retain jurisdiction while he returns
to state court to pursue exhaustion.
Generally, where a petition for a writ of habeas corpus contains only
unexhausted claims, the petition is dismissed without prejudice to allow
for a return to the appropriate state courts. However, in this case, the
one-year limitations period for filing a writ of habeas corpus has
expired. Therefore, it would be fufile to dismiss Williams' petition
without prejudice, because any newly filed petition would be time-barred
as to any exhausted claims. Consequently, Williams cannot return to
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a prisoner has one year after his conviction becomes final in
which to file a petition for a writ of habeas corpus. See
28 U.S.C. § 2244(d)(1). A conviction becomes final, for the purposes of
AEDPA, upon the conclusion of direct review or the expiration of the time
in which a petitioner may seek direct review in the United States Supreme
Court by writ of certiorari. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.
Williams was convicted on June 14, 2001. The Appellate Division
affirmed his conviction on October 8, 2002. Leave to appeal to the New
York Court of Appeals was denied on December 2, 2002. Thus, Williams'
conviction became final on March 2, 2003, the date upon the ninety-day
period during which he could have sought certiorari in the United States
Supreme Court expired. Williams filed the instant petition on February
24, 2004. Since the period in which his petition has been pending in
federal court has not tolled the one-year limitations period, a successive petition would not be timely. Accordingly, Williams'
petition should be dismissed in its entirety.
For the reasons set forth above, I recommend that petitioner's motion
to stay his habeas corpus petition be denied and ...