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United States v. Jenkins


May 28, 2009


The opinion of the court was delivered by: Thomas J. Mcavoy United States District Judge


The Clerk has sent to the Court for review a petition for a writ of habeas corpus filed by petitioner, pro se Sylvia Jenkins pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Petition").*fn2 This action has been transferred to this District by the May 22, 2009 Order of United States District Judge J. Frederick Motz of the District of Maryland. Dkt. No. 3.

In her pleading, petitioner complains of a judgment rendered in Syracuse City Court wherein she claims that she was convicted, following her guilty plea, of the charges of violating the terms of her probation and petit larceny. See Petition. The overall sentence imposed on Jenkins following these convictions is not clearly stated by Jenkins in her petition. See Petition at ¶ 3.*fn3

Petitioner contends that her appeal of that conviction is still pending. Id. at ¶ 8.

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)); see also Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. at 844-45 (1999)) (other citations omitted). As the Supreme Court noted in O'Sullivan, "[c]omity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." Id., 526 U.S. at 844 (citations omitted); see also Galdamez, 394 F.3d at 72 (citation omitted).

It is clear from Jenkins' petition that she has not fully exhausted her state court remedies prior to commencing this action; she candidly states that her appeal of her conviction is "in process" in the state courts, and that the grounds raised in this matter are "pending." See Petition at ¶ 8.*fn4

Perhaps recognizing the fact that this matter was commenced prematurely, Jenkins has indicated in her petition that she filed this action "ahead of the estimated one year period," see id. at ¶ 13, an apparent reference to the one-year limitation period applicable to actions brought under 28 U.S.C. § 2254 in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

However, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation" imposed by the AEDPA. See 28 U.S.C. § 2244(d)(2). Thus, the state court appeal Jenkins has filed regarding her convictions has tolled the AEDPA's statute of limitations. See 28 U.S.C. § 2244(d)(2); see, e.g., Frase v. McCray, No. 9:01-CV-1704, 2003 WL 57919, at *4 (Jan. 8, 2003) (Sharpe, J.) (filing of appeal tolls AEDPA's statute of limitations).*fn5

Because this action was plainly commenced before Jenkins fully exhausted her state court remedies regarding the convictions challenged herein, this Court dismisses this action, without prejudice. Once Jenkins has fully exhausted in the state courts all of the claims she wishes to assert as grounds for federal habeas intervention, she may, at that time, commence her action in this District pursuant to 28 U.S.C. § 2254 challenging her Syracuse, New York convictions.

WHEREFORE, it is hereby

ORDERED, that Jenkins' petition (Dkt. No. 1) is DISMISSED WITHOUT PREJUDICE for the reasons stated above, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the petitioner.


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