The opinion of the court was delivered by: David N. Hurd United States District Judge
Petitioner, Juan Carlos Figueroa ("petitioner" or "Figueroa") commenced this pro se action pursuant to 28 U.S.C. § 2254 on November 18, 2009. See Dkt. No. 1 ("Petition").*fn1
Petitioner claims that on July 31, 2009, respondent United States Marshals Office ("USMO") apprehended him, and thereafter took him to Albany County Court. See Attachment to Petition. He asserts that the USMO improperly lodged a detainer against him with New York's Department of Correctional Services, and by this action, requests that such agency vacate or otherwise remove that detainer. See id. , Ground One; see also Attachment to Petition.
In an initial review of that pleading, it is noted that in the petition or attachment, Figueroa failed to indicate whether he ever filed any proceeding or administrative challenge, in either state or federal court, relating to the detainer lodged against him by the respondent. See Decision and Order (12/15/09) (Dkt. No. 2) ("December, 2009 Order") at p. 2 (citing Petition at ¶¶ 8, 10). In light of the exhaustion requirement applicable to federal habeas petitions, see Shabazz v. Artuz , 336 F.3d 154, 160 (2d Cir. 2003); Aparicio v. Artuz , 269 F.3d 78, 89 (2d Cir. 2001), Figueroa was directed to file an affidavit or affirmation in this action in which he discussed the manner in which he challenged, either administratively or through the state courts, the actions of the USMO about which he complains in his petition prior to commencing this federal habeas corpus proceeding. See December, 2009 Order at p. 3. On December 24, 2009, Figueroa filed such document with the Court, see Dkt. No. 3 ("Affidavit"), which is now ready for review.
In his affidavit, Figueroa has provided additional information relating to his claim that is not contained in his petition. Specifically, he asserts that from September 2006, through March 2007, he was a member of the New York Army National Guard on active duty in Tucson, Arizona. See Affidavit at ¶ 1. He claims that "on or around December or January," after he smoked some marijuana and imbibed alcohol to the point of intoxication, he was detained by "C.I.D. Officers," and taken to a military police station for questioning. Id. at ¶¶ 3-4. He claims that after the interrogation was over, he was never "given any court appearance tickets or a date to return to Arizona." id. at ¶¶ 4-5, He eventually returned to New York after completing his tour of duty in Arizona. Id. at ¶ 6. He asserts that in October 2009, he was honorably discharged from the New York Army National Guard, and by this action "wish[es] to take care of this issue & hope[s] [that he] will not have to return to Arizona for such a petit charge." Id. at ¶¶ 7-8. Significantly, plaintiff's affidavit fails to allege that prior to commencing this action, he has ever brought any state or administrative action challenging either: (1) the criminal matter involving plaintiff in Arizona; or (2) the detainer lodged against him by the USMO.
As noted in the December 2009, order, the law in this Circuit clearly provides that habeas petitioners are required to fully exhaust their remedies prior to commencing a habeas action in federal district court. See December 2009 Order at p. 2 (citations omitted); see also Rivera v. Killian , No. 08CIV.00405, 2008 WL 1990093, at *2-3 (S.D.N.Y. May 8, 2008) (noting that petitioner exhausted his remedies prior to commencing action challenging federal detainer lodged against him); Warren v. Hogan 373 F. Supp. 1241, 1242-43 (S.D.N.Y. 1974).
Because it is clear that Figueroa has failed to exhaust his claims prior to commencing this action, this action will be dismissed without prejudice.*fn2
THEREFORE, it is ORDERED, that:
1. Petitioner's habeas petition (Dkt. No. 1) is DISMISSED WITHOUT PREJUDICE; and
2. The Clerk is directed to serve a copy of this Decision and Order on the petitioner by regular or electronic mail.
Dated: January 14, 2010 Utica, ...