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Ljuljdjurdaj v. People

January 29, 2009

VASELJ LJULJDJURDAJ,*FN1 PETITIONER,
v.
THE PEOPLE OF THE STATE OF NEW YORK; THOMAS HOGAN, WARDEN, RESPONDENTS.



The opinion of the court was delivered by: Gary L. Sharpe United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background*fn2

A. State Court Proceedings

The records establish that in 2002, petitioner, pro se Vaselj Ljuljdjurdaj was charged by an Ulster County grand jury with committing the crime of burglary in the third degree, contrary to N.Y. Penal L. § 140.20.

On July 16, 2003, Ljuljdjurdaj appeared with counsel before Ulster County Court Judge Michael Bruhn for purposes of entering a guilty plea to that charge as well as additional, unrelated charges that were pending against Ljuljdjurdaj in Ulster County. See Transcript of Change of Plea (7/16/03) (Dkt. No. 16, Exh. A) at pp. 2-3. At that proceeding, Ljuljdjurdaj's counsel discussed the terms of the plea proposal on the record, after which the County Court engaged in a colloquy with Ljuljdjurdaj regarding the charges that were pending against him. Id. at pp. 3-7. The court then accepted his guilty plea. Id. at p. 7.

On September 10, 2003, Ljuljdjurdaj appeared with counsel for sentencing before Judge Bruhn. At that proceeding, the court sentenced Ljuljdjurdaj to an indeterminate term of two to four years imprisonment. See Transcript of Sentencing of Vaselj Ljuljdjurdaj (9/10/03) (Dkt. No. 16, Exh. B) at p. 8.

Ljuljdjurdaj did not appeal his conviction. See Petition at ¶ 8.

On May 25, 2004, while Ljuljdjurdaj was in state custody, ICE issued a detainer warrant in which it indicated that it planned to initiate removal proceedings against Ljuljdjurdaj in light of the above-described conviction. Dkt. No. 16, Exh. G.

Sometime in 2005, Ljuljdjurdaj was released from the Oneida Correctional Facility into the custody of ICE.*fn3 The record suggests that on December 8, 2005, ICE issued a final order of removal relating to Ljuljdjurdaj, however because that agency was unable to timely obtain travel documents from Yugoslavia, his native country, he was released from prison under an order of supervision issued by ICE. See Resp. Mem. at p. 5. Although Ljuljdjurdaj's maximum term regarding his state court conviction expired on or about April 23, 2007, respondent asserts that petitioner is nevertheless still subject to the order of supervision previously issued by ICE, and that such agency's final order directing his removal from the United States remains in effect. Id. at p. 6.

On October 3, 2005, while Ljuljdjurdaj was being detained by ICE, he filed a pro se motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL"), § 440.10, in Ulster County Court. See Dkt. No. 16, Exh. C ("CPL Motion"). In support of that motion, Ljuljdjurdaj principally argued that both his trial counsel and the County Court wrongfully failed to advise Ljuljdjurdaj of the potential consequences that his guilty plea would have on his immigration status. See CPL Motion. That application was opposed by the Ulster County District Attorney, and, in an order dated November 20, 2005, Judge Bruhn denied Ljuljdjurdaj's CPL Motion. See Dkt. No. 16, Exh. F ("November, 2005 Order"). Ljuljdjurdaj did not seek leave to appeal that order from the New York State Supreme Court Appellate Division, Third Department. See Petition at ¶ 12(d)(4).

B. This Action

On December 15, 2005, Ljuljdjurdaj filed a pro se petition in the Southern District of New York seeking a writ of habeas corpus. See Dkt. No. 1. Because such application challenged Ljuljdjurdaj's Ulster County conviction, by order dated January 11, 2006, then-Chief Judge Michael B. Mukasey of the Southern District transferred Ljuljdjurdaj's petition to this Court. See Dkt. No. 3. In light of deficiencies that existed in his petition, on April 28, 2006, this Court directed Ljuljdjurdaj to file an amended pleading if he wished to proceed with this action. See Dkt. No. 5. On May 24, 2006, Ljuljdjurdaj filed an amended petition in compliance with the Court's April, 2006 Order. See Dkt. No. 6 ("Am. Pet."). In the supporting memorandum of law he attached to his amended pleading, Ljuljdjurdaj reasserts the claims he raised in his amended petition and CPL Motion, and argues that he is entitled to the vacatur of his guilty plea. See Attachment to Dkt. No. 6 ("Supporting Mem.").

This Court thereafter issued an order which directed the respondent to file a response to the amended petition. Dkt. No. 8. On July 12, 2007, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Ljuljdjurdaj's application, together with various exhibits in support of his request to dismiss the petition. See Dkt. Nos. 15-16. This action is currently before this Court for disposition.*fn4

II. Discussion

A. Exhaustion

Respondent initially argues that this Court may dismiss Ljuljdjurdaj's amended petition because the claims asserted in that pleading are unexhausted. See Resp. Mem. at pp. 8-10.

It is well-settled that a federal district 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 ....' " Shabazz v. Artuz, 336 F.3d 154,160 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)). Furthermore, it is clear that habeas corpus petitioners bear the burden of demonstrating that they have fully exhausted available state remedies prior to commencing a federal habeas action. See Brown v. People of the State of New York, No. 04-CV-1087, 2006 WL 3085704, at *5 (E.D.N.Y. Oct. 30, 2006); Cruz v. Artuz, 97-CV-2508, 2002 WL 1359386, at *8 (E.D.N.Y. June 24, 2002) (citing Colon v. Johnson, 19 F.Supp.2d 112, 119-20 (S.D.N.Y. 1998)) (other citation omitted).

Respondent notes that Ljuljdjurdaj did not seek leave to appeal the November 2005 Order of Judge Bruhn which denied petitioner's CPL Motion, and contends that this Court must therefore deem the claims raised by Ljuljdjurdaj in this matter ...


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