DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, John Gayden, Jr. ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered against him on April 20, 2007, in New York State County Court, Monroe County, following a jury verdict convicting him of one count of Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal Law § 130.75(1)(b)). Petitioner was sentenced to a determinate term of 22 years imprisonment to be followed by five years of post-release supervision. Petitioner presently is incarcerated at Elmira Correctional Facility.
On April 17, 2012, Petitioner filed the instant habeas petition (Dkt #1) pursuant to 28 U.S.C. § 2254, challenging his state-court conviction on the following grounds: (1) his state-court direct appeal was unfairly delayed; and (2) his appellate counsel was ineffective. Petitioner asserts that, due to appellate counsel's ineffectiveness, his state-court direct appeal was repeatedly delayed and had not been perfected at the time he commenced his proceeding.
Subsequently, Petitioner moved to "expand the record" in this case. The Court (Payson, M.J.) "interpret[ed] petitioner's request as a motion to supplement the habeas petition, " and "granted leave to file additional documentation in support of [the] habeas petition...." See Dkt. #8.
On September 27, 2012, Petitioner filed a "supplemental brief" (Dkt #13) in this Court that not only attached additional documentation, but also asserted a raft of new habeas claims, including the following: the trial court erroneously permitted the prosecutor to expand the charged crimes beyond those alleged in the indictment; the verdict was based on insufficient evidence; Petitioner's Due Process rights were violated by a certain factual stipulation entered into by the parties at trial; the prosecutor engaged in misconduct; trial counsel was ineffective; and Petitioner is actually innocent of the crime for which he was convicted.
On October 19, 2012, Respondent filed a Motion to Dismiss for Failure to State a Claim (Dkt #14). Respondent liberally construed Petitioner's pleadings to mean that Petitioner is purporting to amend his petition to add the new claims asserted in his "supplemental brief, " while continuing to press the claims contained in his initial petition. Respondent notes that all but one of Petitioner's claims are unexhausted. In particular, Petitioner, to date, has not asserted his claims of ineffective assistance of appellate counsel in the appropriate procedural vehicle (a petition for a writ of error coram nobis filed in the Appellate Division, Fourth Department, of New York State Supreme Court). Furthermore, Petitioner has not exhausted the new claims contained in his supplemental brief either on direct appeal or via a motion for vacatur pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. Respondent notes that the only claim that arguably could be deemed exhausted is the appellate-delay claim. However, as Respondent points out, the crux of that claim is actually appellate counsel's ineffectiveness, which has not been raised and exhausted in a coram nobis petition. Therefore, it does not appear that the appellate delay claim has been exhausted, either.
Petitioner filed a pleading in opposition (Dkt #15) to Respondent's motion, simply asserting that Respondent's "motion is meritless and must fail."
Respondent filed a reply (Dkt #16) and declaration (Dkt #17), explaining that the Appellate Division, Fourth Department, had issued a scheduling order, directing the prosecution to file their opposition brief on direct appeal by December 14, 2012, and scheduling oral argument for early April, 2013.
The Fourth Department issued a decision on June 7, 2013, unanimously affirming Petitioner's conviction. People v. Gayden , 107 A.D.3d 1428, 967 N.Y.S.2d 277, 2013 N.Y. Slip Op. 04157 (4th Dep't 2013). There is no subsequent appellate history with regard to the decision, indicating that the New York State Court of Appeals has not yet ruled on Petitioner's leave application, which Respondent indicates was filed on July 5, 2013. Petitioner's conviction thus apparently has not yet become final, and the one-year statute of limitations applicable to Section 2254 petitions has not commenced running.
On March 28, 2013, Petitioner filed a pleading docketed as a Motion for Miscellaneous Relief (Dkt #19). In it, he seeks "an order withdrawing petitioner's supplemental claims registered with this court" and "a hearing concerning his constitutional delay issue... submitted in the principal habeas corpus petition in this case" which "issue also include[s] ineffective assistance of appellate counsel." Dkt #19 (ellipsis in original). An exact duplicate of this pleading was submitted to the Court and docketed as a separate Motion for Miscellaneous Relief (Dkt #20).
Respondent filed a declaration (Dkt #21) in response to Petitioner's motions to withdraw and for a hearing. Respondent states that he does not oppose Petitioner's motion to withdraw all of his habeas claims other than those asserting appellate delay and ineffectiveness of appellate counsel. However, Respondent does oppose Petitioner's request for a hearing because it would be immature, inasmuch as the Court has not yet decided Respondent's motion to dismiss and Respondent has not submitted an answer with respect to the appellate delay or ineffective assistance of appellate counsel claims.
This matter was transferred to the undersigned on September 5, 2013. For the reasons discussed below, Respondent's motion to dismiss is granted, and Petitioner's ...