United States District Court, N.D. New York
DAVIS Petitioner, pro se.
DECISION AND ORDER
D'AGOSTINO UNITED STATES DISTRICT JUDGE.
26, 2018, petitioner Rodney Davis filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No.
1, Petition ("Pet."). He has paid the statutory
filing fee. Dkt. Entry dated 7/26/2018. For the reasons that
follow, the petition is dismissed without prejudice to
refiling once petitioner has exhausted his claims in state
challenges a 2013 judgment of conviction in Schenectady
County, upon a jury verdict, of second degree murder,
attempted murder, assault, criminal possession of a weapon,
and attempted assault. Pet. at 1-2. On November 3, 2016, the New
York State Supreme Court, Appellate Division, Third
Department, affirmed the judgment of conviction, and, on
January 23, 2017, the New York Court of Appeals denied leave
to appeal. Id. at 2-3; see also, People v.
Davis, 144 A.D.3d 1188, 1190 (3d Dep't 2016),
lv. denied, 28 N.Y.3d 1144 (2017). Petitioner
asserts that, on or about March 20 or 26, 2018, he filed a
writ of error coram nobis for ineffective assistance of
appellate counsel, and that, on May 3, 2018, the Third
Department denied his motion without an evidentiary hearing.
Pet. at 3-4, 14. Petitioner then states that on or about May
20, 2018, he sought leave to appeal the denial to the Court
of Appeals. Id. at 14. That appeal is apparently
contends that he is entitled to federal habeas relief because
(1) he received ineffective assistance of counsel during both
his trial and appeal and (2) there was prosecutorial
misconduct which deprived petitioner of a fair trial. Pet. at
5-9. For a more complete statement of petitioner's
claims, reference is made to the petition.
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 the petitioner raise all claims in state court
prior to raising them in a federal habeas corpus petition.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). 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, 526 U.S. at 845.
it is clear that petitioner has not exhausted his state court
remedies because petitioner asserts that he timely sought
leave to appeal from the denial of his writ of error coram
nobis and his appeal is currently pending before the Court of
Appeals. Pet. at 3-4, 14. Accordingly, the highest state
court capable of reviewing petitioner's claims has not
yet had the opportunity to do so. See Brown v.
Ercole, No. 1:07-CV-2611, 2007 WL 2769448, at *1
(E.D.N.Y. Sept. 21, 2007) (explaining that tolling pursuant
to the AEDPA occurs "while state post-conviction motions
are pending. . . . Therefore, once the Court of Appeals
issued its order denying leave to appeal, the coram
nobis petition was no longer pending because no further
state court remedies were available.")
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
appeal of the denial of his collateral motion. It is not
futile to require him to complete exhaustion of his state
court remedies before pursuing a federal habeas petition.
petitioner's papers do not reflect his awareness that his
petition was filed prematurely as a protective filing, to the
extent that petitioner may be understood to request that this
action be stayed and his petition held in abeyance, that
request is denied. The Supreme Court has stated, in dicta,
that a habeas petitioner "might avoid" the
application of the statute of limitations resulting from
"reasonable confusion" about the timeliness of a
state filling "by filing a 'protective' petition
in federal court and asking the federal court to stay and
abey" the habeas proceedings. Pace v.
Diguglielmo, 544 U.S. 408, 416 (2005); see also
Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001)
(noting that a stay and abeyance may be warranted "where
an outright dismissal" of a mixed petition "could
jeopardize the timeliness of a collateral attack")
(internal quotation marks omitted). However,
"Pace suggests that whether a stay and abeyance
is appropriate in a particular case is governed by the"
considerations set forth in Rhines v. Weber, 544
U.S. 269, 275-76 (2005). Rivera v. Kaplan, No.
1:17-CV-2257, 2017 WL 3017713, at *2 (S.D.N.Y. July 13,
2017). Under Rhines, a stay and abeyance should be
"available only in limited circumstances" where the
petitioner can show both (1) "good cause" for
failing to "exhaust his claims first in state
court" and (2) that his unexhausted claims are not
"plainly meritless." 544 U.S. at 277.
petitioner has not argued, much less established, that he had
"good cause" for failing to exhaust his claims in
state court before filing his petition. Additionally, it does
not appear that a subsequent habeas petition, if necessary
and if filed promptly after petitioner's claims are
exhausted in state court, will be jeopardized by the statute
of limitations. The AEDPA's one-year limitations period
generally begins to run from the date on which the state
criminal conviction became final by the conclusion of direct
review or by the expiration of the time to seek direct
review. 28 U.S.C. § 2244(d)(1)(A). When petitioners do
not seek certiorari in the United States Supreme Court, a
state conviction becomes final ninety (90) days after the New
York Court of Appeals denied leave to appeal. Gonzales v.
Thaler, 565 U.S. 134, 148-49 (2012); Saunders v.
Senkowski, 587 F.3d 543, 547 (2d Cir. 2009). Properly
filed state court applications for relief operate to toll the
limitations period if those applications are filed before the
one-year limitations period expires. 28 U.S.C. §