United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE.
se Petitioner Jose Rodriguez seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, claiming that his
appellate counsel was ineffective for failing to perfect his
appeal, and his trial counsel was ineffective for failing to
inform him of his right to testify at trial and failing to
communicate or negotiate a plea deal on his behalf.
(See Pet., ECF No. 1, ¶ 12.) Before this Court
is Magistrate Judge Debra C. Freeman's Report and
Recommendation ("Report, " ECF No. 31),
recommending that this Court dismiss the Petition without
prejudice. (Report at 22.) Magistrate Judge Freeman
advised the parties that failure to file timely objections to
the Report would constitute a waiver of those objections on
appeal. (Id.) No objections have been filed. Having
reviewed the Report for clear error and finding none, this
Court ADOPTS the Report in full.
Report and Recommendation
"may accept, reject, or modify, in whole or in part, the
findings or recommendations" set forth within a
magistrate judge's report. 28 U.S.C. § 636(b)(1)(C).
The court must review de novo the portions of a
magistrate judge's report to which a party properly
objects. Id. Portions of a magistrate judge's
report to which no or "merely perfunctory"
objections are made are reviewed for clear error. See
Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y.
2006) (citation omitted). Clear error is present only when
"upon review of the entire record, [the court is] left
with the definite and firm conviction that a mistake has been
committed." United States v. Snow, 462 F.3d 55,
72 (2d Cir. 2006) (citation omitted).
The Antiterrorism and Effective Death Penalty Act
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") "requires a state petitioner to
exhaust all of his state remedies before a federal court may
consider his petition for a writ of habeas corpus."
Sweeper v. Graham, No. 14 Civ. 6346 (CM), 2017 WL
4516645, at *1 (S.D.N.Y. Sept. 26, 2017) (citing 28 U.S.C.
§ 2244(d)(1); Picard v. Connor, 404 U.S. 270,
275 (1971)). "To properly exhaust an ineffective
assistance of trial counsel claim that relies on evidence
outside the pretrial and trial record ... the petitioner must
raise it as part of a motion to vacate judgment under [New
York Criminal Procedure Law ("CPL")] § 440.10
and then seek leave to appeal to the Appellate
Division." Alston v. Griffin, No. 12 Civ. 8092
(CS) (PED), 2014 WL 6663458, at * 13 (S.D.N.Y. Oct. 16, 2014)
(citation omitted); see also Caballero v. Keane, 42
F.3d 738, 740 (2d Cir. 1994).
"[I]neffective-assistance-of-appellate counsel claims
are exhausted" when a petitioner "has previously
raised them in [a] coram nobis petition before the
Appellate Division and sought leave to raise them before the
New York Court of Appeals." Cumberland v.
Graham, No. 08 Civ. 04389 (LAP) (DF), 2014 WL 2465122,
at *33 (S.D.N.Y. May 23, 2014); see also Chrysler v.
Guiney, 806 F.3d 104, 117 (2d Cir. 2015).
a general matter, unexhausted claims must be dismissed
without prejudice to afford the petitioner an opportunity to
exhaust the claim in state court." Rodriguez v.
Sheaham, No. 12 Civ. 5640 (PAC), 2016 WL 3522278, at *3
(S.D.N.Y. June 21, 2016). In "limited circumstances,
" a district court may "stay the petition and hold
it in abeyance" if "the district court determines
these is good cause for the petitioner's failure to
exhaust his claims." Rhines v. Weber, 544 U.S.
269 (2005). But granting a stay is an "abuse of
discretion" when a claim is "plainly
meritless." Id. Indeed, pursuant to 28 U.S.C.
§ 2254(b)(2), a claim may be "denied on the
merits" even if it is unexhausted. "Although the
Second Circuit has yet to enunciate a standard for
determining when unexhausted claims should be denied on the
merits, the majority of district court decisions in this
Circuit have embraced a 'patently frivolous'
test." Green v. Keyser, No. 15 Civ. 932 (TPG),
2017 WL 5125533, at *5 (S.D.N.Y. Nov. 1, 2017).
THE PETITION IS DISMISSED WITHOUT PREDJUDICE
Report correctly found that all of Petitioner's claims
are unexhausted. (Report at 15-18.) Petitioner asserts
three ineffective assistance of counsel claims: (1) that his
appellate counsel "never perfected [an] appeal on
Petitioner's behalf; (2) that his trial counsel
"never advised Petitioner of his right to testify at his
criminal trial"; and (3) that his trial counsel
"never communicated or attempted to negotiate a
favorable plea deal on Petitioner's behalf." (Pet.
explained in greater detail in the Report, Petitioner
asserted his claim for ineffective assistance of appellate
counsel in a motion for a writ of error coram nobis.
(Report at 5 (citing SR-002-03).) The Appellate Division denied
the motion. (Report at 6 (citing SR-045.) However, the
Appellate Division later issued an order recalling and
vacating its denial, and appointing counsel to represent
Petitioner for purposes of pursuing that coram nobis
motion anew. (SR-106-07.) Thus, Petitioner now has a further
opportunity to pursue his ineffective assistance of appellate
counsel claim in state court. (Report at 16-17); see also
Tolliver v. Greiner, No. 9:02 Civ. 570 (LEK) (RFT), 2005
WL 2179298, at *16 (N.D.N.Y. Sept. 8, 2005) (suggesting that,
where "the Appellate Division. . . vacated its prior
order affirming [petitioner's] conviction, . . .
exhaustion would be satisfied upon presenting all claims in
his de novo appeal"), report and
recommendation adopted, 2005 WL 2437021 (N.D.N.Y. Sept.
30, 2005). Therefore, the Report correctly found
Petitioner's claim for ineffective assistance of
appellate counsel is unexhausted. (Report at 17.)
claim for ineffective assistance of trial counsel has not
been raised in state court. (See Report at 18.)
Because it "rel[ies] on alleged conversations between
himself and his attorney, matters which are not part of the
pretrial record, " it is properly raised by filing a CPL
§440.10 motion. Daniels v. Stalone, No. 1:14
Civ. 219 (MAT), 2017 WL 2931256, at *3 (W.D.N.Y. July 10,
2017); see also Caballero, 42 F.3d at 740
("Motions to vacate judgment, which permit
'evidentiary exploration' of matters both on and off
the record, are the preferred avenue for inadequate
representation claims in New York.")- As the Report
notes, Petitioner has never filed a CPL § 440.10 motion
claiming ineffective assistance of trial
counsel. (Report at 18.) Thus, the Report correctly
found that Petitioner's ineffective assistance of trial
counsel claim is unexhausted. (Id.)
Report further correctly found that a stay of the Petition is
not appropriate. While Petitioner attempted to raise his
ineffective assistance of appellate counsel claim in his
coram nobis motion, Petitioner has not shown good
cause for his failure to exhaust his claims for ineffective
assistance of trial counsel. (Id. at 20.)
Report also correctly found that dismissal of
Petitioner's claims on their merits would be premature.
(Id. at 19.) As the Report explains, whether
Petitioner's trial and/or appellate counsel were
constitutionally ineffective will depend upon the facts of
his case. (Id.); see also Roe v. Flores-Ortega, 528
U.S. 470, 485 (2000) (noting that whether counsel was
ineffective "will turn on the facts of a particular
case"). Those facts have not yet been explored, and
could be developed through a § 440.10 motion and/or his