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GARRAWAY v. PHILLIPS

United States District Court, S.D. New York


May 11, 2004.

MARK GARRAWAY, Petitioner, -against- WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER

I. Introduction

Petitioner has filed a motion seeking a stay of his petition for a writ of habeas corpus so that he may return to state court to exhaust his claim of ineffective assistance of appellate counsel through a petition for writ of error coram nobis. For the reasons set forth below, petitioner's motion is granted.

 II. Facts

  On September 17, 1997, petitioner was convicted in the Supreme Court of the State of New York, Bronx County (Stackhouse, J.), after a jury trial, of murder in the second degree, in violation of New York Penal Law Section 125.25. By that judgement, petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life. Petitioner is currently incarcerated pursuant to that judgment.

  Petitioner appealed his conviction to the Supreme Court Appellate Division, First Department, arguing that: (1) the Trial Court improperly ruled on Batson*fn1 violations, (2) the prosecutor made improper and prejudicial remarks during summation, (3) the Trial Court improperly allowed the prosecution to impeach its own witness and (4) petitioner's sentence was unduly harsh (Petitioner's undated Appellate Brief ("Pet. App. Br."), at 16, 32, 36, 38, annexed as Ex. 1 to the Affidavit of Assistant District Attorney Christopher J. Blira-Koessler, sworn to July 22, 2003 ("Koessler Aff."). Petitioner filed a pro se supplemental brief in September 2000 arguing that (1) his trial counsel was ineffective for (a) failing to move to dismiss the indictment and (b) failing to object to the prosecutor's summation and (2) "the trial court's reliance on the third party testimony to establish a prosecution witness' prior familiarity with appellant violated appellant's right to due process of law" (Petitioner's Supplemental Brief at 3, 6, 10, 14, dated September 2000, annexed as Ex. 2 to Koessler Aff.).

  On June 26, 2001, the Appellate Division affirmed petitioner's conviction, stating: The court's rulings on applications made by both defendant and the People pursuant to Batson v Kentucky (476 U.S. 79) were proper. Defendant has failed to preserve his contentions that the court failed to follow the three-step Batson protocols and that the People's explanations for their peremptory challenges were pretextual (see, People v Allen, 86 N.Y.2d 101, 109-110), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court sufficiently complied with the three-step procedure (see, People v Hameed, 88 N.Y.2d 232, 237, cert denied 519 U.S. 1065), and properly determined that the People's explanations were nonpretextual. These ex-planations involved acceptable criteria (see, People v. Mancini, 219 A.D.2d 456, Iv denied 86 N.Y.2d 844; People v Manigo, 165 A.D.2d 660), and the court's finding that the explanation was not pretextual is entitled to great deference (People v Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352), especially since matters of demeanor are involved. The record also supports the court's finding that it was pretextual with respect to a prospective juror peremptorily challenged by defense counsel. In making that finding, the court similarly employed its unique opportunity to evaluate the credibility of a demeanor-based explanation.

 

The court properly permitted the People to impeach their own witness by a prior written statement that inculpated defendant. The witness's trial testimony was not merely unhelpful, but affirmatively damaged the People's case by tending to prove that the person who fired the fatal shot could not have been defendant (see, CPL 60.35; People v. Fitzpatrick, 40 N.Y.2d 44).
Defendant has failed to preserve for appellate review his contentions with respect to the prosecutor's summation and we decline to review them in the interest of justice. Were we to review these claims, we would find that although some of the prosecutor's comments were better left unsaid, in light of the absence of any obdurate pattern of in-flammatory remarks, reversal is unwarranted (see. People v. D'Alessandro, 184 A.D.2d 114, 118-119, Iv denied 81 N.Y.2d 884).
On the record before us, defendant received meaningful representation (see, People v Benevento, 91 N.Y.2d 708, 713-714).
We perceive no basis for reduction of sentence.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
People v. Garraway, 284 A.D.2d 262, 262-63, 726 N.Y.S.2d 846, 846-47 (1st Dep't June 26, 2001).

  On August 29, 2001, petitioner sought leave to appeal to the New York Court of Appeals on substantially the same grounds*fn2 asserted before the Appellate Division (Schwartz Ltr. at 1-2). On August 3, 2001, petitioner submitted a pro se supple-mental letter to the Court of Appeals raising the same issues raised in his pro se supplemental brief to the Appellate Division (Letter of Mark Garraway, dated Aug. 3, 2001, annexed as Ex. 6 to Koessler Aff.). Petitioner's application for leave to appeal was denied on November 28, 2001. People v. Garraway, 97 N.Y.2d 656, 762 N.E.2d 935, 737 N.Y.S.2d 57 (2001). In his habeas corpus petition, petitioner asserts four claims: (1) ineffective assistance of appellate counsel, (2) ineffective assistance of trial counsel, (3) Batson violations and (4) improper summation by the prosecutor (Am. Pet. at 9-12). Petitioner argues that appellate counsel was ineffective for not raising trial counsel's failure to (a) make certain arguments with respect to the Batson violations, (b) move to dismiss the indictment and (c) object to the prosecution's summation (Amended Petition, dated Jan. 1, 2003 ("Am. Pet.") at 10-12). Respondent opposes petitioner's claims asserting, inter alia, that petitioner has failed to exhaust his ineffective-assistance-of-appellate-counsel claim (Resp. Br. at 40). Petitioner subsequently made a motion seeking a stay of his petition while he exhausts his ineffective-assistance-of-appellate-counsel claim in state court through a petition for writ of error coram nobis (Declaration of Mark Garraway, dated Aug. 4, 2003 ("Garraway Decl., ¶ 2)). Respondent filed no opposition to this motion. On July 21, 2003, petitioner moved before the Appellate Division for a writ of error coram nobis (Garraway Decl., ¶ 18 and Ex. A thereto). III. Analysis

  A. Exhaustion

  It is fundamental that a state prisoner seeking to vacate his conviction on the ground that his federal constitutional rights were violated must first exhaust all available state remedies. 28 U.S.C. § 2254(b); Baldwin v. Reese, — U.S. —, 124 S.Ct. 1347, 1349 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 808 (2d Cir. 2000). As the Court of Appeals for the Second Circuit has noted:

If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner "unless it appears that the applicant has exhausted the remedies available in the courts of the State; or that there is either an absence of available State corrective process; or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b)(1).
Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001).

  A two-step analysis is used to determine whether a claim has been exhausted:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . .
Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted), overruled on other grounds, Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). See also Baldwin v. Reese, supra, 124 S.Ct. at 1349; McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002), quoting Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001); accord Powell v. Greiner, 02 Civ. 7352 (LBS), 2003 WL 359466 at *1 (S.D.N.Y. Feb. 18, 2003); Alston v. Senkowski, 210 F. Supp.2d 413, 417 (S.D.N.Y. 2002); Boyd v. Hawk, 94 Civ. 7121 (DAB), 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996).

  To satisfy the first element of the exhaustion test, a habeas petitioner must fairly present his federal claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002); Galarza v. Keane, 252 F.3d 630, 638 (2d Cir. 2001); Daye v. Attorney Gen., supra, 696 F.2d at 191.

  To satisfy the second step of the analysis, "a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke. 933 F.2d 117, 119 (2d Cir. 1991). See also O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Exhaustion requires that a prisoner must even pursue discretionary state appellate remedies before he can raise a claim in a habeas corpus proceeding. Baldwin v. Reese, supra, 124 S.Ct. at 1349; O'Sullivan v. Boerckel, supra, 526 U.S. at 846-48.

  Here, petitioner's claims of (1) ineffective assistance of trial counsel, (2) Batson violations and (3) improper prosecutorial summation were presented to the Appellate Division, First Department, and the New York State Court of Appeals, and, thus, are exhausted.

  Petitioner's claim of ineffective assistance of appellate counsel, however, is unexhausted. In New York, a claim of ineffective assistance of appellate counsel can only be exhausted through a petition for a writ of error coram nobis. Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003) ("In New York, coram nobis is the appropriate remedy for ineffective assistance of appellate counsel."); Cotto v. Herbert, 331 F.3d 217, 228 (2d Cir. 2003); Drake v. Portuondo, 321 F.3d 338, 342 (2d Cir. 2003); Betances v. Sabourin, 01 Civ. 8737 (LTS), 2004 WL 991905 at *1 (S.D.N.Y. May 6, 2004); Adams v. Greiner, 02 Civ. 6328 (GEL), 2004 WL 912085 at *12 (S.D.N.Y. Apr. 29, 2004); People v. Bachert, 69 N.Y.2d 593, 595-96, 509 N.E.2d 318, 319-20, 516 N.Y.S.2d 623, 624-25 (1987). There is no time limit for filing for a writ of error coram nobis. Excell v. People of State of New York. 01-CV-3073, 03-Misc-0066, 2003 WL 23185749 at *13 (E.D.N.Y. Oct. 30, 2003) ("[O]ption to pursue a writ of coram nobis is not foreclosed since there is no time limit for filing such a writ."), citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987); Perez v. Greiner, 02 Civ. 1436 (JCF), 2003 WL 22427759 at *7 (S.D.N.Y. Oct. 23, 2003) (Report and Recommendation) (same); Pena v. Fischer, 00 Civ. 5984 (HB)(MHD), 2003 WL 1990331 at *12 (S.D.N.Y. Apr. 30, 2003) (`"there is no time limit for moving for a writ of error coram nobis alleging ineffective assistance of appellate counsel, and thus the remedy is still available"). Here, petitioner filed a petition for a writ of error coram nobis on July 27, 2003 (Garraway Decl., ¶ 18). This claim is currently pending before the Appellate Division and, thus, is still unexhausted.*fn3 B. Mixed Petitions

  The petition here contains claims that are both exhausted and unexhausted and is, therefore, a "mixed petition." Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir. 2001). "[A] district judge confront[ed with] a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition. . . ." 254 F.3d at 376. The Honorable Leonard B. Sand, United States District Judge, explained these alternatives in more detail in Reyes v. Phillips. 02 Civ. 7319 (LBS), 2003 WL 42009 at *4 (S.D.N.Y. Jan. 6, 2003):

Petitioner's failure to exhaust his available state remedies [for his ineffective-assistance-of-counsel claim] presents the Court with three choices. Prior to 1996, the rule of Rose v. Lundy required a district court to dismiss a mixed petition without prejudice to re-filing upon exhaustion of state remedies. Rose, 455 U.S. at 522; Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001) (per curiam). Dismissal of the petition gives Petitioner "the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims." McKethan v. Mantello. 292 F.3d 119, 122 (2d Cir. 2002). Under AEDPA, however, a habeas court also may deny a mixed petition on the merits even if it contains an unexhausted claim. 28 U.S.C.A. § 2254(b)(2) (West 2002); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). Finally, a district court has the option of staying the exhausted portion of the petition and directing the petitioner to exhaust or withdraw his remaining claims. Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir. 2001). The Second Circuit has described this last option as the "only ap- propriate course" when outright dismissal of the petition "will jeopardize the timeliness of a collateral attack." Id. at 380; see also Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002) (describing the consequences of dismissal after the time for filing has expired).
  Here, the "only appropriate course" is to stay the petition because to do otherwise would "jeopardize the timeliness of collateral attack." Title 28, United States Code, Section 2244(d)(1) imposes a one-year statute of limitations on petitions brought under Section 2254. This statute of limitations began to run in this case ninety-days after petitioner's application for leave to appeal to the New York Court of Appeals was denied. 28 U.S.C. § 2244(d)(1)(A); Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000). Petitioner's application for leave to appeal was denied on November 28, 2001. People v. Garraway, 97 N.Y.2d 656, 762 N.E.2d 935, 737 N.Y.S.2d 57 (2001). Thus, the one-year statute of limitations began to run on February 26, 2002. The petition was filed on December 24, 2002 — well before the expiration of the statute of limitations on February 26, 2003. The one-year statute of limitations, however, is not tolled while the petition is pending in federal court. Duncan v. Walker. 533 U.S. 167, 181-82 (2001). Thus, if the present petition were dismissed, any attempt to refile the claims after exhaustion proceedings in state court would be time barred. Accordingly, the only viable alternative is to stay the petition.

 IV. Conclusion

  For all the foregoing reasons, the petition is stayed to permit petitioner to seek appropriate collateral relief in state court of his unexhausted claim. Within thirty (30) days after the state courts have completed their review of his ineffective-assistance-of-counsel claim, petitioner must file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition. If petitioner fails to fulfill this condition. I shall issue a Report and Recommendation recommending that the stay be vacated nunc pro tunc as of the date of this Opinion and Order and the petition be dismissed in its entirety. See Zarvela v. Artuz, supra, 254 F.3d at 381 (footnote omitted) ([W]hen a district court . . . elects to stay [a mixed] petition, it should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. If either condition of the stay is riot met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed. . . .").

  SO ORDERED


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