The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
William Jacob Hust ("Hust" or "Petitioner"), appearing pro
se, petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Hust contends that James H. Miller III, Esq.,
his appellate counsel, was constitutionally ineffective for
refusing to present two issues that the Petitioner requested to
be included in his direct appeal. For the reasons set forth
below, the Court denies Hust's petition.
It was alleged in the Hust indictment that, on July 20, 1999,
in his house in Rocky Point, New York, William Hust sexually
abused his two year old daughter Sarah, by sticking his middle
finger in her anus twice. Hust, who claimed to have been sexually
abused as a child, gave a written confession to law enforcement,
admitting that, on the evening of the incident, he became angry
with his daughter for twice soiling her diaper twice.
On February 10, 2000, after a non jury trial in the Supreme
Court of Suffolk County (Michael Mullen, J.), Hust was convicted
of Aggravated Sexual Abuse in the Second Degree, Assault in the
Second Degree, and Endangering the Welfare of a Child, in
violation of New York Penal Law §§ 130.67, 120.05, and 260.10,
respectively. He was sentenced to seven years in prison for his
aggravated sexual abuse conviction; five years for his assault
conviction; and one year for his conviction for endangering the
welfare of a child, all of which were to be served concurrently.
Hust directly appealed his convictions, arguing that: (1) his
sentence was unduly harsh and excessive; and (2) the prosecution
failed to prove his guilt beyond a reasonable doubt. On June 17,
2002, the Appellate Division, Second Department affirmed Hust's
convictions, finding that both of his claims lacked merit.
People v. Hust, 295 A.D.2d 536, 744 N.Y.S.2d 680 (2d Dept.
2002). On July 31, 2002, the New York Court of Appeals denied
leave to appeal. People v. Hust, 98 N.Y.2d 698, 747 N.Y.S.2d 416
(2002). Hust did not seek certiorari review before the United
States Supreme Court or file any other post conviction motions.
On June 2, 2003, Hust filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, arguing that he was
denied his constitutional right to the effective assistance of
appellate counsel by James H. Miller III Esq., because counsel
refused "to place issues petitioner requested to be placed in the
direct appeal." Pet. at 8. In particular, Hust asserts that, in
addition to his excessive sentence and legal sufficiency claims,
counsel should have included the following arguments: (1) the
indictment was legally insufficient; (2) the prosecution
improperly amended the indictment; and (3) Hust's confession was
coerced. In support of his petition, Hust submits a letter dated
April 23, 2002, which he sent to the Clerk of the Appellate
Division, Second Department, informing the Clerk of this
situation and asking for the re-assignment of counsel.
In response to the petition, the District Attorney's Office, as
attorney for the Respondent, argues that Hust's petition should
be dismissed because Hust's sole claim is presently unexhausted
and Hust has failed to pursue an available state court remedy,
namely that of a writ of error coram nobis. The Court agrees.
A federal district court should dismiss a state prisoner's
habeas petition "if the prisoner has not exhausted available
state remedies as to any of his federal claims." Coleman v.
Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991), but see 28 U.S.C. § 2254 (stating that a district court
may now, in its discretion, deny on the merits a habeas corpus
petition "notwithstanding the failure of the application to
exhaust the remedies available in the courts of the state"). In
this regard, "states should have the first opportunity to address
and correct alleged violations of state prisoner's federal
rights." Coleman, 501 U.S. at 731. Therefore, a habeas
petitioner must have previously presented to the state courts
"both the factual and legal premises" of the claims for which he
now seeks review in federal court. Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982).
Under New York law, a petition for a writ of error coram nobis
is the appropriate remedy for claims of ineffective assistance of
appellate counsel. Sweet v. Bennett, 353 F.3d 135, 142 n. 7 (2d
Cir. 2003); Williams v. Goord, 277 F. Supp.2d 309, 321
(S.D.N.Y. 2003). Because there is no time limit for bringing a
coram nobis application, a state prisoner must have exhausted
this state court remedy before seeking federal habeas review.
Excell v. People of the State of New York, No. 01-CV-3073
(JBW), 2003 WL 23185749 at *13 (E.D.N.Y. Oct. 30, 2003).
In this case, Hust raises a single claim, that of ineffective
assistance of appellate counsel. He did not previously present
this claim in the New York state courts, and, in particular, he
failed to seek a writ of error coram nobis, the appropriate and
available state court remedy for this claim. Therefore, Hust's
claim is presently unexhausted for federal habeas review and this
Court should dismiss his petition.
However, if the Court were to dismiss the instant petition and
Hust returned to state court to exhaust his claim, Hust would be
time-barred from bringing a subsequent habeas petition in this
Court. Pursuant to the Anti-Terrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), the one-year statute of limitations for
Hust to file his habeas petition commenced on October 30, 2002,
which was ninety days after the New York Court of Appeals denied
Hust leave to appeal his convictions. See McKinney v. Artuz,
326 F.3d 87, 96 (2d Cir. 2003). Hust filed his habeas petition on
June 2, 2003, which was within the limitations period. However,
it is well-established that the filing of a federal habeas corpus
petition does not toll the limitations period. Duncan v.
Walker, 533 U.S. 167, 181-182, 121 S.Ct. 2120,
150 L.Ed.2d 251 (2001). Therefore, it appears that the limitations period
expired on October 30, 2003, while the instant petition was
pending before this Court.
In Rodriguez v. Bennett, 303 F.3d 435, 438-439 (2d Cir.
2002), the Second Circuit posed a hypothetical set of facts
similar to those presently before the Court. The Second Circuit
noted that dismissing a timely filed habeas petition "without
prejudice" for failure to exhaust state court remedies would be
an "illusion" where a "petitioner could never succeed in timely
re-filing the petition because he would already be time-barred."
Rodriguez, 303 F.3d at 439. In such a situation, the Second
Circuit noted that, ...