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United States District Court, S.D. New York

April 27, 2004.


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.




  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 [1987]) (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. 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 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 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 court.

  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.


  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).

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