The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Lewis A. Kaplan, United States District
James Pettus has brought this pro se petition for a writ of
habeas corpus from his October 20, 2003 conviction in Supreme
Court, New York County, for forgery and filing a false
instrument, and sentence to four to eight years imprisonment.
(Dkt. No. 2: Pet. ¶¶ 1-5; Dkt. No. 5: Am. Pet. ¶¶ 1-5.)
Presently before the Court is the State's motion to dismiss
without prejudice for Pettus' failure to exhaust state remedies.
(Dkt. Nos. 14-15.) For the reasons set forth below, the Court
should grant the State's motion and dismiss the petition without
Pettus' amended petition raises three claims: (1) denial of a
hearing on his C.P.L. § 440 motion denied him due process, (2)
the prosecutor failed to disclose favorable evidence in violation
of the Fifth and Fourteenth Amendments, and (3) an improper
warrant caused his false arrest in violation of the Fourth
Amendment. (Dkt. No. 5: Am. Pet. ¶ 13.) Pettus' original petition
also raised the claim that his New York State constitutional
right was violated when he was tried in a different county than
the county of the offense. (Pet. ¶ 12(A).) Addenda to his Amended
Petition also appear to raise the claim that he was denied his
right to appear in front of the grand jury. (Am. Pet., Addenda,
Pettus filed a C.P.L. § 440 motion, raising his venue and
failure to produce favorable evidence claims, and also "illegal
arrest, false imprisonment." (Dkt. No. 14: Martland Aff. Ex. A:
Pettus C.P.L. § 440 Motion.)
Judge Wetzel denied Pettus' § 440 motion on December 17, 2003,
stating that "[t]hese papers are unintelligible and, fail to
state any claim for which relief can be granted." (Martland Aff.
Ex. B: 12/17/03 Wetzel Order.) Pettus sought leave to appeal from
denial of his § 440 motion (Martland Aff. Ex. C: Pettus Leave to
Appeal Application; see also Martland Aff. Ex. D: Affidavit of
Bonnie Goldberg, Pettus' assigned counsel for direct appeal),
which the First Department denied on February 5, 2004 (Martland
Aff. Ex. F: 1st Dep't Order). People v. Pettus, No. M-6060,
2004 N.Y. App. Div. LEXIS 1283 (1st Dep't Feb. 5, 2004). Significantly, Pettus' direct appeal from his conviction
remains pending in the First Department. (Dkt. No. 15: State Br.
at 1, 3.) While the direct appeal briefs are not in the record
before this Court, the State represents that Pettus' counsel's
direct appeal brief "makes the following arguments: (1) the
convictions on all four counts were against the weight of the
evidence and based on legally insufficient evidence; and (2)
venue for one of the forgery counts and one of the offering a
false instrument for filing counts was improper in New York
County because the offense was committed in the Bronx." (State
Br. at 3.)
Once the First Department rules, the parties have the right to
seek leave to appeal to the New York Court of Appeals and
subsequently seek certiorari from the United States Supreme
"An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that (A) the applicant has
exhausted the remedies available in the courts of the
State . . ." 28 U.S.C. § 2254(b)(1)(A). Because Pettus' direct
appeal still is pending, he has not exhausted available state
remedies, since some of his claims can be raised on direct appeal.
See e.g., Carpenter v. Reynolds, 212 F. Supp. 2d 94,
97-98 (E.D.N.Y. 2002) (dismissing habeas petition without
prejudice because claims were unexhausted where petitioner failed
to file a direct appeal of his conviction); Wax v. Keane,
89 Civ. 7843, 1991 WL 220962 at *2 (S.D.N.Y. Oct. 17, 1991)
(noting that petitioner's previous habeas petition "was denied
for failure to exhaust state remedies, since [petitioner's]
direct state appeal was then pending."); see generally Otero v. Eisenschmidt, 01 Civ.
2562, 2004 WL 2504382 at *34-35 & n. 66 (S.D.N.Y. Nov. 8. 2004)
(Peck, M.J.) (discussing and citing cases on exhaustion
requirement for habeas petitions from state court convictions).
Clearly, his grand jury, Fourth Amendment and venue claims are
cognizable on direct appeal.
Even if some but not all of his claims were exhausted, the
result would be the same. "[F]ederal district courts may not
adjudicate mixed petitions for habeas corpus, that is, petitions
containing both exhausted and unexhausted claims." Rhines v.
Weber, 125 S. Ct. 1528, 1532-33 (2005). Because of the AEDPA's
one year limitations period, federal courts faced with a "mixed"
petition must decide whether to dismiss the federal habeas
petition or use a "stay and abeyance" type procedure. See,
e.g., Rhines v. Weber, 125 S. Ct. at 1532-35; Zarvela v.
Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied,
534 U.S. 1015, 122 S. Ct. 506 (2001). Here, because Pettus' direct appeal
still is pending, he has over a year to timely re-bring his
federal habeas petition, and thus the petition should be
dismissed rather than stayed. See, e.g., Sanchez v.
Green, 02 Civ. 4803, 2003 WL 132538 at *3 (S.D.N.Y. Jan. 16,
2003) (Peck, M.J.); King v. Greiner, 02 Civ. 5510, 2002 WL
31453976 at *2-3 (S.D.N.Y. Nov. 5, 2002) (Peck, M.J.) (& cases
cited therein), report & rec. adopted, 2003 WL 57307 (S.D.N.Y.
Jan. 7, 2003) (Cote, D.J.); see also, e.g., Shomo v.
Maher, 04 Civ. 4149, 2005 WL 743156 at *7 & n. 12 (S.D.N.Y.
Mar. 31, 2005) (dismissing unexhausted claims without prejudice
so that state courts would have opportunity to decide whether
claims are time-barred, and noting that "there is no basis to
retain jurisdiction over a petition that contains only
unexhausted claims."). CONCLUSION
For the reasons set forth above, the State's motion to dismiss
should be granted and Pettus' habeas petition should be dismissed
without prejudice for failure to exhaust state remedies.
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 the Court, with
courtesy copies delivered to the chambers of the Honorable Lewis
A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500
Pearl Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Kaplan. Failure
to file objections will result in a waiver of those objections
for purposes of appeal. Thomas v. Arn, 474 U.S. 140,
106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822,
115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small ...