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
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.
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
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
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
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
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
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
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.
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. . . .").