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United States District Court, S.D. New York

May 18, 2005.

JAMES PETTUS, Petitioner,

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Lewis A. Kaplan, United States District Judge:

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 prejudice. FACTS

  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, "Claim I.")

  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 Court.


  "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.


  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 v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). [Page 434, ]


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