United States District Court, N.D. New York
CLARENCE R. BROWN, JR., Petitioner,
CLARENCE R. BROWN, JR. Petitioner, pro se
DECISION AND ORDER
T. SUDDABY Chief United States District Judge
about April 27, 2017, Clarence R. Brown, Jr. filed papers the
Court liberally construed as a petition for a writ of habeas
corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He
challenged a 2008 judgment of conviction, in Cayuga County,
of second degree burglary (2 counts) and fourth degree
promoting prostitution. Id. at 1-2.
Court reviewed the petition and determined that it was
deficient because "petitioner failed to provide any
information regarding whether he appealed his conviction and,
if so, what grounds were raised on appeal, and the date(s)
upon which the state court(s) decided his appeal." Dkt.
No. 5 at 5. Without that information, the Court could not
determine whether the petition was "timely or whether
petitioner properly exhausted his claims." Dkt. No. 5 at
5. On May 12, 2017, petitioner was directed to file an
amended petition. See Id. at 5-6.
filed an amended petition and exhibits, dated May 24, 2017.
Dkt. Nos. 7, 7-1. The Court received additional exhibits on
June 6, 2017. Dkt. No. 8. For the reasons that follow, this
action is dismissed without prejudice.
THE AMENDED PETITION
again challenges his 2008 Cayuga County conviction. Dkt. No.
7 at 1. He states that on June 11, 2010, the Appellate
Division affirmed his conviction, and the New York Court of
Appeals later denied leave to appeal further. Id. at
2; see People v. Brown, 74 A.D.3d 1748
(4th Dep't. 2010), lv. denied 15
N.Y.3d 802 (2010). Petitioner argues that appellate counsel
was ineffective. Dkt. No. 7 at 5, 12-13. Although it is not
entirely clear, he may also be attempting to argue that he
was subject to "false imprisonment." Id.
asserts that he is "sending every thing [sic]" to
this Court and to the Appellate Division, and indicates that
he is currently exhausting his state court remedies. Dkt. No.
7 at 8-9. A review of petitioner's exhibits reveals that
in papers dated April 1, 2017, petitioner sought a writ of
error coram nobis in the Appellate Division. See
Dkt. No. 7-1 at 185-295. That application appears to remain
pending. See id.; Dkt. No. 1 at 16-17.
application for a writ of habeas corpus may not be granted
until a petitioner has exhausted all remedies available in
state court unless "there is an absence of available
State corrective process" or "circumstances exist
that render such process ineffective to protect the rights of
the applicant." 28 U.S.C. § 2254 (b)(1)(A), (B)(i),
(ii). The exhaustion requirement "is principally
designed to protect the state courts' role in the
enforcement of federal law and prevent disruption of state
judicial proceedings[.]" Jimenez v. Walker, 458
F.3d 130, 149 (2d Cir. 2006) (quoting Rose v. Lundy,
455 U.S. 509, 518 (1982)).
properly exhaust his claims, petitioner must do so both
procedurally and substantively. Procedural exhaustion
requires that he raise all claims in state court prior to
raising them in a federal habeas corpus petition. Substantive
exhaustion requires that the petitioner "fairly
present" each claim for habeas relief in "each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim." Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (citations omitted). In
other words, petitioner "must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process." O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Petitioner must also
use the proper procedural vehicle so that the state court may
pass on the merits of his claims. Dean v. Smith, 753
F.2d 239, 241 (2d Cir. 1985).
noted, petitioner recently filed a state court writ of error
coram nobis, dated April 1, 2017, in which he raises similar
arguments to those raised in the amended petition.
Compare Dkt. No. 7 with Dkt. No. 7-1 at
185-295. That application appears to remain pending. Dkt. No.
7 at 8-9, 12; Dkt. No. 7-1 at 185-295. Based upon
petitioner's papers, no state court has decided his
claims, much less the highest state court capable of
is no basis on the record before this Court to conclude that
there is an absence of available State corrective process
(e.g., where there is no further state proceeding
for a petitioner to pursue) or circumstances exist that
render that state court process ineffective to protect
petitioner's rights (e.g. where further pursuit
would be futile). 28 U.S.C. § 2254(b)(1)(B)(i), (ii);
Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).
Petitioner has state court remedies available to him, and is
in the process of exhausting those remedies by pursuing his
coram nobis application. See Dkt. No. 7. It is not
futile to require him to complete exhaustion of his state
court remedies before pursuing a federal habeas petition.
Based on the foregoing, the amended petition is premature and
is dismissed without prejudice to re-filing one complete
petition once petitioner has pursued and exhausted all the
claims he wants to raise in the state courts. See
Diguglielmo v. Senkowski, 42 F.App'x. 492, 496 (2d
Cir. 2002) ("[B]ecause the New York Court of Appeals has
not yet had an opportunity to address DiGuglielmo's
federal claims, comity requires that we allow that court an