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Brown v. Superintendent

United States District Court, N.D. New York

June 13, 2017

CLARENCE R. BROWN, JR., Petitioner,
v.
SUPERINTENDENT, Respondent.

          CLARENCE R. BROWN, JR. Petitioner, pro se

          DECISION AND ORDER

          GLENN T. SUDDABY Chief United States District Judge

         I. INTRODUCTION

         On or 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.[1]

         The 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.

         Petitioner 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.

         II. THE AMENDED PETITION

         Petitioner 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. at 15.

         Petitioner 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.

         III. DISCUSSION

         An 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)).

         To 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).

         As 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 reviewing them.

         There 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 ...


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