United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge United States District
se Petitioner Anthony Adams, an inmate of the Five
Points Correctional Facility, seeks relief pursuant to 28
U.S.C. § 2254 and alleges that he is being
unconstitutionally held after a parole violation, as set
forth more precisely in his Petition. ECF No. 1. The Court
previously ordered Petitioner to show cause why this Petition
should not be dismissed for failure to exhaust his state
remedies. ECF No. 2. Petitioner has now filed an
“Opposition to why to proceed with the Petition”
(ECF No. 3) and a letter with attachments showing his
attempts to file a grievance for an alleged assault (ECF No.
4). For the reasons stated below, the Petition must be
dismissed without prejudice.
U.S.C. § 2254 requires a petitioner for habeas corpus
relief to first exhaust his state court remedies. A
petitioner may exhaust his state court remedies by pursuing
his claims throughout a full round of state post-conviction
proceedings. In this case, Petitioner recites that he was
found to have violated the terms of his parole on March 10,
2016 and that he has not filed any state action challenging
his detention. Petitioner states “I was told to file a
habeas corpus. I was told if I filed an appeal. I would of
done all the time by the time I got a reply back.” ECF
No. 1 at 5. The Petition further notes that Petitioner was
“told to file a habeas corpus to get quicker
results…” ECF No. 1 at 7. Whatever advice
Petitioner may have received - or even if Petitioner was
being advised to file an action in state court - that advice
does not serve as a substitute for the exhaustion
was directed to file an affirmation or affidavit pursuant to
the Court's prior Order to show why this Petition should
not be dismissed for his failure to exhaust state court
remedies. Petitioner initially filed a two page typewritten
explanation and a one page handwritten letter to the Court
explaining that he was injured on March 24, 2016, and has
been denied grievance forms. ECF No. 3 at 1. Petitioner
states that he has been transferred to a new facility and his
ability to write a grievance was further delayed because his
belongings were packed up when he was moved. ECF No. 3 at 2.
also stated that he is attempting to copy “letters of
authenticity” to verify the difficulties he has had
filing his grievances. ECF No. 3 at 3. Petitioner has now
filed these documents, which relate to Petitioner's
attempts to file a grievance concerning an incident in which
his collar bone was broken. See ECF No. 4. However,
his alleged injuries are unrelated to this action, and are
unrelated to his failure to exhaust state court remedies.
U.S.C. § 2254(b)(1)(A) provides that “[a]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the
state.” A habeas petitioner 'must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Typically, this
means that federal habeas claims must have been included in
both the petitioner's appeal to the state's
intermediate appellate court and in an application for
permission to appeal to the state's highest court.
O'Sullivan, 526 U.S. at 848. Here, Petitioner
has stated that did not make an application to any state
authority of any kind because these proceedings are, in his
view, too slow.
Response and subsequent documents, Petitioner explains the
delay in filing other extraneous, papers, but his initial
statement that he has not yet begun the process of exhausting
his state remedies remains uncontradicted. The Court will
therefore remind Petitioner that he is required to complete
that state court exhaustion process before he can bring a
habeas petition in federal court.
Petition itself makes it clear that it was filed prior to the
exhaustion of Petitioner's state remedies as a result of
his conscious decision to pursue relief under 28 U.S.C.
§ 2254 instead of pursuing state remedies, in the
mistaken belief that this was the quicker legal route to
release. Petitioner's Response confirms this and, under
the habeas statute, exhaustion is a jurisdictional
requirement. The Petition is therefore dismissed for failure
to exhaust state remedies.
dismissal does not constitute a dismissal on the merits for
purposes of 28 U.S.C. § 2244(b) and therefore would not
preclude the filing of another Petition once Petitioner has
exhausted his state remedies.
has again alleged misconduct by prison officials and made
various allegations, including assault, concerning
mistreatment by corrections officers. Petitioner indicates
that he has since been moved to a different facility. In its
prior Order, the Court directed the Clerk of Court to send
forms to Petitioner to permit him to raise such claims in a
complaint under 42 U.S.C. § 1983. The Clerk of Court
will once again be directed to send to Petitioner with this
Order a blank § 1983 complaint form, and the
instructions for preparing a complaint. Petitioner, who has
shown no difficulty in filing papers with this Court, is
advised that 42 U.S.C. § 1983, not 28 U.S.C. §
2254, is the proper way to seek redress of any constitutional
violations he may have suffered while in prison.
HEREBY ORDERED, that the Petition is DISMISSED WITHOUT
PREJUDICE to filing a new petition once Petitioner's
state remedies are exhausted;
that the Clerk of Court is directed to send to Petitioner
with this Order a blank § 1983 complaint form, and ...