United States District Court, N.D. New York
ANTHONY C. HARDEN, Petitioner,
LEROY FIELDS, Respondent.
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
Anthony C. Harden filed a petition for a writ of habeas
corpus and exhibits pursuant to 28 U.S.C. § 2254. Dkt.
No. 1 (“Petition”); Dkt. No. 1-1
(“Exhibits”). He paid the filing fee. For the reasons
that follow, the Petition is dismissed as premature.
challenges his 2013 conviction in Albany County for two
counts of second degree assault. Pet. at 1. The Appellate
Division affirmed the conviction on December 3, 2015, and the
New York Court of Appeals denied leave to appeal on June 7,
2016. Id. at 2; People v. Harden, 21
N.Y.S.3d 730, 736 (App. Div. 2015), lv. denied 27
N.Y.3d 1133 (2016).
argues that he is entitled to “[i]mmediate release from
prison, ” Pet. at 15, because his trial counsel was
ineffective (Grounds One, Two, Three, Four, and Six), the
trial court sentenced him to unlawful consecutive terms of
imprisonment (Ground Five), and his appellate counsel was
ineffective (Grounds Seven through Nine). Pet. at 5-12; Ex. K
at 45-48. Petitioner has raised his appellate counsel claims
in a state court application for a writ of coram nobis, which
is currently pending in the Appellate Division. Pet. at 12;
Ex. K at 46-48.
may not grant an application for a writ of habeas corpus
until the applicant has exhausted all available state court
remedies 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). 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, 149-50 (2d Cir.
2006) (quoting Rose v. Lundy, 455 U.S. 509, 518
fully exhaust his state court remedies, a petitioner must
“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). In other words, habeas petitioners “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). The 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.
noted above, Petitioner has a pending state court action in
which he raises the appellate counsel claims set forth in
Grounds Seven through Nine of his Petition. Pet. at 12.
Because that action remains pending, Petitioner has not
exhausted his state court remedies with respect to his
ineffective assistance of appellate counsel claims.
is no basis to conclude that either of the § 2254(b)(1)
exceptions applies here. Petitioner does not indicate that he
lacks an available state corrective process or allege
circumstances that render the state court process ineffective
to protect his rights. § 2254(b)(1)(B); Lurie v.
Wittner, 228 F.3d 113, 124 (2d Cir. 2000). As Petitioner
notes, he has state court remedies available to him, and is
availing himself of those remedies by pursuing his coram
nobis application. He must exhaust his state court remedies
before pursuing a federal habeas petition.
on the foregoing, the Petition is premature and is therefore
dismissed without prejudice. Petitioner may re-filing a
single complete petition once he 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
opportunity to do so. Accordingly, we dismiss
DiGuglielmo's petition without prejudice. This will allow
DiGuglielmo to pursue any procedural options available to him
in New York state court, and then take whatever steps may be
appropriate to return to federal court if