The opinion of the court was delivered by: Hon. Thomas J. Mcavoy, Senior U.S. District Judge
Petitioner Miguel Rosa, a state prisoner appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he raises three substantive grounds for habeas relief: (1) trial counsel was ineffective; (2) the police engaged in misconduct, and (3) the prosecutor engaged in misconduct. Dkt. No. 1 at 5-8. Respondent has filed an answer, memorandum of law and the relevant state court records. Dkt. Nos. 7-9, 11. For the reasons that follow, the petition is denied and dismissed.
I. Petitioner's failure to comply with orders
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the action, or comply with any order of the court. FED. R. CIV. P. 41(b); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R. Co., 370 U.S. 626, 629 (1962)). Rule 41.2(b) of the Local Rules of Practice for the Northern District of New York states that failure to notify the court of a change of address in accordance with Local Rule 10.1 (c)(2) may result in the dismissal of any pending action. N.D.N.Y.L.R. 41.2(b).
The Second Circuit has held that generally, a determination of whether to dismiss for failure to prosecute involves consideration of whether the petitioner's failure caused a delay of considerable duration; whether the petitioner was given notice that further delay would result in dismissal, and whether defendants will be prejudiced by further delay. United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). A court must also carefully balance the need to alleviate court congestion with the petitioner's right to have his day in court, and the court must assess the efficacy of lesser sanctions. Id. Dismissal is a harsh remedy to be used only in "extreme situations." LeSane, 239 F.3d at 209. The Second Circuit has also "emphasized the importance of first giving a pro se litigant a direct warning that his case will be dismissed for failure to prosecute [.]" Lowmack v. Napoli, No. 07-CV-0200, 2011 WL 1560930, at *3 (W.D.N.Y. Apr. 5, 2011) (citing Drake, 375 F.3d at 251), adopted by 2011 WL 1560972 (W.D.N.Y. Apr. 25, 2011).
In this case, Petitioner was warned in a Decision and Order dated June 23, 2009, that he must "promptly notify the Clerk's Office and all parties or their counsel of any change in his address; his failure to do so will result in the dismissal of this action." Dkt. No. 2 at 3 (emphasis in original). Petitioner complied with that order on October 29, 2009 (Dkt. No. 10) and November 27, 2009 (Dkt. No. 12). According to publicly available information, however, Petitioner was released from the Hudson Correctional Facility on April 2, 2010. See http://nysdocslookup.docs.state.ny.us. He is currently serving a term of post-release supervision, and the maximum expiration date of his sentence is April 2, 2015. Id. To date, he has not notified the Court of his current address.*fn1 It is neither the Court's function, nor the Respondent's responsibility, to search for Petitioner's possible location after his release. See Dansby v. Albany Cty. Corr. Facility, No. 95--CV--1525, 1996 WL 172699, at *1 (Apr. 10, 1996) (Pooler, D.J.) ("It is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.") (quoting Perkins v. King, No. 84--3310, slip op. at 4 (5th Cir. May 19, 1985) (further citations omitted)).
Petitioner's failure to comply with the Court's June 23, 2009, order, and his failure to comply with the Northern District of New York's Local Rules, convey the message that he no longer wants to pursue his petition. Accordingly, Petitioner's habeas petition is dismissed, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and Local Rules 10.1(c)(2) and 41.2(a) and (b), for failure to prosecute this action and for failure to obey the Court's orders.*fn2 See Jackson v. Goord, No. 01-0120, 29 Fed. Appx. 717, 718 (2d Cir. Feb. 22, 2002) (affirming dismissal of pro se prisoner civil rights action for failure to comply with a court order directing correction of a pleading over a five month period, despite notification of the possibility of dismissal in "bold-face print" in the district court's order); Lowmack, 2011 WL 1560930, at *2-3 (dismissing habeas corpus petition brought pursuant to 28 U.S.C. § 2254 for failing to comply with Fed. R. Civ. P. 41 (b) and Western District of New York Local Rule 72.3 (a)(3)); Gaines v. Bezio, No. 09-CV-0176, 2009 WL 2252140, at *2-3 (N.D.N.Y. Jul. 28, 2009) (dismissing action for failure to comply with Fed. R. Civ. P. 41 (b) and Local Rule 41.2 (b) where plaintiff was released from prison in March 2009 and failed to comply with court's order by filing an amended complaint and by providing a current address); Wilson v. Perlman, No. 07-CV-1128, 2009 WL 1851336, at *2-3 (N.D.N.Y. Jun. 26, 2009)(action dismissed pursuant to Fed. R. Civ. P. 41 (b) where plaintiff was released from prison in March 2009 and "failed to provide the court a current address where he can be reached for purposes of communications from the court.").
In the alternative, the petition is without merit.
Petitioner challenges a September 12, 2003, judgment of conviction in Schenectady County Court of second degree burglary (N.Y. PENAL LAW § 140.25(2). See Dkt. No. 1 at 2; Dkt. No. 8, Respondent's Memorandum of Law ("R. Mem.") at 1. He was sentenced, as a second felony offender, to serve a determinate term of nine years in prison followed by five years post-release supervision. Dkt. No. 1 at 2; R. Mem. at 1-2.
Petitioner timely appealed to the Appellate Division, Third Department, which affirmed. People v. Rosa, 47 A.D.3d 1009 (3d Dep't. 2008). The New York Court of Appeals denied leave to appeal on May 21, 2008. People v. Rosa, 10 N.Y.3d 816 (2008). Petitioner also filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") §§ 440.10 and 440.20, which was denied by the Schenectady County Court on March 27, 2009.
Dkt. No. 9, Ex. M (Decision and Order, Drago, J.). The Appellate Division denied leave to appeal on May 19, 2009. Id. at Ex. P.
The Supreme Court of New York, Appellate Division, Third Department, briefly summarized the facts of this case:
In the early morning hours of July 20, 2002, defendant and two others entered the victim's apartment and removed appliances and furniture. A neighbor, who saw defendant removing the items, called the police. Upon their arrival, they spoke with defendant who explained that the victim was in custody and had asked him to watch her apartment and take care of her property. Later that day, the victim, who had not been ...