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A Nthony W Ard v. S Heriff M Ichael S Posato


July 28, 2011


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


phone" (Pet. at 6.), (2) "conviction obtain[ed] by a suggestive show-up which Pro se petitioner Anthony Ward was unconstitutional" (Pet. at 7-8.), (3) ("petitioner" or "Ward") brings this action "evidence produc[ed] at trial was pursuant to 28 U.S.C. § 2254, seeking his insufficient to convict petitioner on charges" release from custody. For the reasons set (Pet. at 9.) and, (4) "evidence obtain[ed] forth below, with the consent of petitioner, unlawfully from phone due to a defective the petition is dismissed without prejudice as search warrant." (Pet. at 10-11.) premature.


After a jury trial, petitioner was

convicted on October 6, 2010, in Nassau County Supreme

Court, of Burglary in the

In the instant petition, which petitioner First Degree; Petit Larceny; Assault in the filed pro se on February 3, 2011, Ward Second Degree; and Resisting Arrest. (Pet. argues that he is being unlawfully detained at 2.) On November 8, 2010, petitioner filed and, as such, he seeks a writ of habeas a motion to set aside his verdict, pursuant to corpus ordering his release. Specifically, N.Y. Crim. Proc. Law § 330. (Pet. 4-6, 8, petitioner raises four grounds for his release, 12.) At the time of the petition, petitioner's namely: (1) "conviction obtained by the motion was pending before the court. (Pet. unconstitutional failure of the prosecution to at 4-5.) Accordingly, petitioner had not yet disclose . . . evidence favorable to the been sentenced. (Pet. at 2, 4-5.) petitioner as well as an unlawful search of

By letter dated June 28, 2011, petitioner see Lawrence v. Florida, 549 U.S. 327, 333 advised the Court that he informed his "trial (2007), petitioner must fairly present his and appellate lawyers" that he filed this federal constitutional claims to the highest action. (ECF No. 12.) In addition, state court having jurisdiction over them. petitioner stated "I hope that don't interfere See Daye v. Attorney Gen. of N.Y., 696 F.2d with my direct appeal because I have not 186, 191 n. 3 (2d Cir. 1982) (en banc). exhausted all of my state remedies if so I Exhaustion of state remedies requires that a would like to waive my petition until I use petitioner "fairly present federal claims to all of my state remedies." The Court has the state courts in order to give the State the carefully considered petitioner's opportunity to pass upon and correct alleged submissions.*fn1 violations of its prisoners' federal rights."

Duncan v. Henry, 513 U.S. 364, 365 (1995)


(quotation marks omitted) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).

According to 28 U.S.C. § 2254, this However, "it is not sufficient merely that the Court may "entertain an application for a federal habeas applicant has been through writ of habeas corpus on behalf of a person the state courts." Picard, 404 U.S. at 275-76. in custody pursuant to the judgment of a On the contrary, to provide the State with State court only on the ground that he is in the necessary "opportunity," the prisoner custody in violation of the Constitution or must "fairly present" his claim in each laws or treaties of the United States." appropriate state court (including a state's Moreover, a district court shall not review a highest court with powers of discretionary habeas petition unless "the applicant has review), alerting that court to the federal exhausted the remedies available in the nature of the claim and "giv[ing] the state courts of the state."*fn2 28 U.S.C. § courts one full opportunity to resolve any 2254(b)(1)(A). Although a state prisoner constitutional issues by invoking one need not petition for certiorari to the United complete round of the State's established States Supreme Court to exhaust his claims, appellate review process." O'Sullivan v.

it is unclear whether petitioner's motion to Clerk of the Court is instructed to enter set aside the verdict has been decided or judgment accordingly and close this case. whether petitioner has been sentenced. (Pet. The Court certifies pursuant to 28 U.S.C. § at 2, 4-6, 8, 12.) In other words, petitioner 1915(a)(3) that any appeal from this has not presented his federal constitutional Memorandum and Order would not be taken claims to the highest state court. Therefore, in good faith and, therefore, in forma because none of petitioner's claims have pauperis status is denied for purpose of an been exhausted, this Court, in its discretion, appeal. See Coppedge v. United States, 369 has determined that dismissal of the petition U.S. 438, 444-45 (1962). without prejudice is warranted, rather than a stay. See Pollack v. Paterson, 2011 WL 710605, at *6 (March 1, 2011 S.D.N.Y.) SO ORDERED ("Because none of the claims in the

Amended Petition have been exhausted, it cannot be characterized as mixed and is

therefore ineligible for a stay-and-abeyance JOSEPH F. BIANCO procedure. Instead, the Amended Petition United States District Judge should be dismissed without prejudice.") (citations omitted) (collecting cases). Date: July 28, 2011 Accordingly, the petition is dismissed Central Islip, NY without prejudice as premature. See Coleman v. Thompson, 501 U.S. 722, 731 * * * (1991) ("[The Supreme Court] has long held that a state prisoner's federal habeas petition Petitioner is proceeding pro se. Respondent should be dismissed if the prisoner has not is represented on behalf of Kathleen M. exhausted available state remedies as to any Rice, District Attorney, Nassau County, by: of his federal claims."). Joanna R. Hershey, Esq., District Attorney's Office of Nassau County, 262 Old Country


For the foregoing reasons, the instant action under § 2254 is dismissed without prejudice to petitioner's right to file a future petition pursuant to § 2254 after he fully exhausts his state court remedies.*fn3 The Road, Mineola, New York 11501.

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