United States District Court, S.D. New York
April 27, 2004.
DEQUAN WILLIAMS, Petitioner,
MICHAEL RABIDEAU, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
On April 27, 2004, Magistrate Judge Kevin N. Fox issued a
Report and Recommendation ("Report") recommending that the
petition of Dequan Williams ("Petitioner") for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 be denied. No
objections to the Report have been filed.
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 Supp. 2004). 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 has reviewed thoroughly Magistrate Judge Fox's
well-reasoned Report and has determined that there is no clear
error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition
for writ of habeas corpus is denied.
The 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). A certificate will be granted ?only if the
applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C.A. 2253(c)(2); 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.
Magistrate Judge Fox's Report follows.
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
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.
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
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. Daye 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
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 futile 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 federal
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. 1998).
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 that the
petition be dismissed.
V. 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 shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Laura Taylor
Swain, 40 Centre Street, Room 1205, New York, New York, 10007,
and to the chambers of the undersigned, 40 Centre Street, Room
540, New York, New York, 10007. Any requests for an extension of
time for filing objections must be directed to Judge Swain.
FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See
Thomas v. Arn 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55,
57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38
(2d Cir. 1983).