The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner David Hill ("Petitioner" or "Hill"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254 vacating his 2006 New York State conviction, following a guilty plea, for robbery in the second degree.
Petitioner's guilty plea satisfied an indictment charging him with two counts of robbery in the second degree, and one count of grand larceny in the fourth degree. The charges stemmed from an incident in which Petitioner and co-defendant Wayne K. Reefe ("Reefe") forcibly stole money from employees at the off-track betting establishment("the OTB") in the Town of Henrietta.
On January 10, 2006, Petitioner pled guilty to the first count of indictment (second degree robbery). Petitioner admitted that he drove to the OTB with Reefe, threatened the manager to open the safe and give him money, and then absconded with the money. As part of the plea agreement, the prosecutor promised not to charge Hill in connection with a separate knife-point robbery in the bathroom of the OTB that had occurred on November 7, 2004. Petitioner was sentenced to an agreed-upon determinate term of three and one-half years imprisonment with five years of post-release supervision.
The only issues raised by Petitioner on direct appeal concerned his sentence. His conviction was unanimously affirmed and leave to appeal was denied. He then filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") §440.10 in Monroe County Court arguing that he was not advised by trial counsel regarding the immigration consequences of his guilty plea. The motion was denied, and Petitioner did not seek leave to appeal.
Petitioner now seeks a writ of habeas corpus listing the following contentions: he was denied effective assistance of counsel, and the prosecution improperly used information from his co-defendant's guilty plea as evidence in the case against him.
Petitioner filed the instant petition naming "State of New York" as the respondent. Habeas Rule 2 requires that "the petition must name as respondent the state officer who has custody." 28 U.S.C. § 2254, Rule 2(a). Respondent argues that Petitioner has not named any state officer and thus has failed to name the proper respondent in his petition, and therefore the petition must be dismissed. Although "[f]ailure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction[,l]" Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994), the situation may be rectified by amending the petition to name the correct party. Accordingly, the Court directs the Clerk of Court to amend the caption to name Calvin West, Acting Superintendent Elmira Correctional Facility, as the respondent in the matter.
A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the state court is fairly apprised of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119--20.
Respondent correctly argues that both of Hill's claims are unexhausted because he failed to appeal the denial of his C.P.L. § 440.10 to the Appellate Division, the highest court from which review may be sought with regard to the denial of such a motion. Petitioner could return to state court and file another C.P.L. § 440.10 motion and the court, in its discretion, could consider it on the merits. Because Hill still has an avenue open to him in state court, the claims remain unexhausted.
Hill's failure to exhaust the claims is not fatal to this Court's disposition of his application on the merits. Because the Court finds the claims to be wholly meritless, it has the discretion to dismiss the petition notwithstanding Hill's failure to exhaust. See 28 U.S.C. ...