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T Yshaun J Acobs v. M Ichael S Posato


July 1, 2011


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:



Pro se petitioner Tyshaun Jacobs In the instant petition, which petitioner ("petitioner" or "Jacobs") brings this action filed pro se on February 7, 2011, Jacobs pursuant to 28 U.S.C. § 2254 and 28 U.S.C. argues that he is being unlawfully detained § 2241,*fn1 seeking his release from custody. and seeks a writ of habeas corpus ordering For the reasons set forth below, the petition his release. Specifically, petitioner asserts is dismissed without prejudice. that: (1) he was unlawfully detained without a warrant, and (2) he was subject to an illegal search and seizure at his residence. (Pet. at 1.) Petitioner was indicted on October 19, 2010, in Nassau County Supreme Court, on charges of murder in the second degree (N.Y. Penal Law § 125.25), robbery in the first degree (N.Y. Penal Law pretrial suppression hearing was scheduled Exhaustion of state remedies requires that a for March 24, 2011. (Richards Aff. ¶ 7.) petitioner "fairly present federal claims to the state courts in order to give the State the On March 18, 2011, respondent filed a opportunity to pass upon and correct alleged motion to dismiss the petition for lack of violations of its prisoners' federal rights." jurisdiction. The Court issued an Order Duncan v. Henry, 513 U.S. 364, 365 (1995) dated April 21, 2011, requesting that (quotation marks omitted) (quoting Picard v. petitioner file a reply to respondent's motion Connor, 404 U.S. 270, 275 (1971)). by May 21, 2011. The Court did not receive However, "it is not sufficient merely that the a reply from petitioner as of the date of this federal habeas applicant has been through decision. The Court has carefully the state courts." Picard, 404 U.S. at 275-76. considered the submissions and arguments On the contrary, to provide the State with of the parties. the necessary "opportunity," the prisoner must "fairly present" his claim in each appropriate state court (including a state's highest court with powers of discretionary


According to 28 U.S.C. § 2254, this review), alerting that court to the federal Court may "entertain an application for a nature of the claim and "giv[ing] the state writ of habeas corpus on behalf of a person courts one full opportunity to resolve any in custody pursuant to the judgment of a constitutional issues by invoking one State court only on the ground that he is in complete round of the State's established custody in violation of the Constitution or appellate review process." O'Sullivan v. laws or treaties of the United States." Boerckel, 526 U.S. 838, 845 (1999); see also Moreover, a district court shall not review a Duncan, 513 U.S. at 365-66. habeas petition unless "the applicant has exhausted the remedies available in the Here, it is apparent that petitioner has not courts of the state."*fn2 28 U.S.C. § been convicted yet, as he himself admits in 2254(b)(1)(A). Although a state prisoner his petition (Pet. at 2), nor has petitioner need not petition for certiorari to the United indicated to the Court after filing his petition States Supreme Court to exhaust his claims, that he has been tried and convicted. Thus, see Lawrence v. Florida, 549 U.S. 327, 333 petitioner is not in custody pursuant to a (2007), petitioner must fairly present his state court judgment of conviction. Nor federal constitutional claims to the highest does petitioner allege that he has exhausted state court having jurisdiction over them. his state court remedies. In other words, See Daye v. Attorney Gen. of N.Y., 696 F.2d petitioner has not presented his federal 186, 191 n. 3 (2d Cir. 1982) (en banc). constitutional claims to the highest state court. Accordingly, the Court concludes state court conviction and she has not SO ORDERED exhausted her available state court remedies."); Bolar v. Pilgrim State

Psychiatric Hosp., No. 07-CV-5445 (NG),


United States District Judge

2008 WL 2051029, at *2 (E.D.N.Y. May 13, 2008) ("It is clear that she has not yet been convicted of the offense with which she is Date: July 1, 2011 charged and that she has not exhausted her Brooklyn, NY state court remedies, both of which are necessary to filing a petition for a writ of * * * habeas corpus pursuant to 28 U.S.C. § 2254.") Petitioner is proceeding pro se. Respondent is represented on behalf of Kathleen M. Rice, District Attorney, Nassau County, by: Tammy J. Smiley, Esq., and Jason R.


For the foregoing reasons, the instant Richards, Esq., District Attorney's Office of action under § 2254 is dismissed without Nassau County, 262 Old Country Road, prejudice to petitioner's right to file a future Mineola, New York 11501. petition pursuant to § 2254 after he fully exhausts his state court remedies.*fn3 The Clerk of the Court is instructed to enter judgment accordingly and close this case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

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