Opinion
00 Civ. No. 1353 (GEL).
December 12, 2000.
Kevin Auyeung, pro se, for Petitioner Kevin Auyeung.
Eliot Spitzer, Attorney General of the State of New York, New York, N.Y. (Rebecca Ann Durden, Assistant Attorney General, New York, NY, of counsel), for Respondent Joseph F. David.
OPINION AND ORDER
On February 23, 2000, this Court's Pro Se Office received from petitioner Kevin Auyeung ("Auyeung" or "petitioner") this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his conviction upon a plea of guilty to robbery in the first degree. For the reasons to be discussed, the petition is denied.
I. Background
Petitioner is currently incarcerated at Greene Correctional Facility, Coxsackie, New York, pursuant to an April 30, 1996, judgment of the New York State Supreme Court, New York County (Weissberg, J.), upon his guilty plea to Robbery in the First Degree (Penal Law § 160.15[4]). Petitioner is serving an indeterminate term of four to eight years' imprisonment. Petitioner brings this habeas corpus proceeding on the following grounds: (1) that his guilty plea was not knowingly and voluntarily entered because the "ramifications of the plea for deportation proceedings [were] never explored" at his plea allocution; (2) that he was denied effective assistance of counsel because his lawyer failed to urge that he be sentenced as a youthful offender; and (3) that he was denied due process because he should have been treated as a youthful offender under New York State Law. The state responds that Auyeung has failed to exhaust his state court remedies and that his claims are in any event without merit.
II. Exhaustion
A state prisoner seeking federal habeas corpus review of his state court conviction must first exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) and (c); Blisset v. Lefevre, 924 F.2d 434, 438 (2d Cir. 1991). The exhaustion requirement is not satisfied unless petitioner "fairly presents" his federal claim in the state courts, thus giving the state courts a "fair opportunity" to hear the federal claims that form the basis of the habeas petition. See Dave v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). A petitioner has fairly presented a claim if he has apprised the state courts of "both the factual and the legal premises of the claim he asserts in federal court." Id.
Auyeung has never presented his constitutional claims to the state courts. On direct appeal, represented by a different lawyer than the one who had represented him at his plea and sentence, Auyeung argued only that his sentence was unduly harsh, and that he should have been sentenced as a youthful offender. (Br. Def-Appellant at 4-8.) He did not, however, raise any issue about the validity of his plea, question the effectiveness of his lawyer, or allude to any federal procedural right. Subsequently, Auyeung moved pro se for relief pursuant to New York Criminal Procedure Law ("CPL") § 440.20. Once again, he failed to raise any question about the validity of his guilty plea, did not object to the quality of his lawyer's representation, and made no reference to any federal claim. Rather, he objected only to his sentence, and only on the ground that the judge had failed to make an explicit determination of his eligibility for youthful offender status, allegedly a violation of the relevant state statute. (Pet.'s § 440.20 App. at 2-4.)
Therefore, since petitioner has never raised a federal claim on direct appeal or in any other motion before the state courts, and because he still retains a right under the laws of New York to assert those claims, see McKinney's CPL, Practice Commentaries, § 440.20, p. 559 ("A motion to set aside sentence may be brought even though the illegality upon which it is grounded presently is appealable or could with due diligence have been appealed"), this Court will not grant the writ. See 28 U.S.C. § 2254(b)(1)(A);Duncan v. Henry, 513 U.S. 364, 365 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution").
Even where petitioner has not exhausted his state remedies, a district court may still deny the habeas application on the merits if it finds the unexhausted claims lack merit. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"); Granberry v. Greer, 481 U.S. 129, 136 (1987); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992). Oftentimes, this is the more efficient course of action. See, e.g., Hanson v. Albaugh, No. 99 Civ. 9733 (JGK), 2000 WL 426420, at * 1 (S.D.N Y April 20, 2000) ("Whether to consider and deny an unexhausted claim is within the Court's discretion") (internal citations omitted); Youngblood v. Greiner, No. 97 Civ. 3289 (DLC), 1998 WL 720681, at *6 (S.D.N.Y. Oct. 13, 1998) (exercising discretion to deny petition because unexhausted claim is "patently frivolous");Colon v. Johnson, 19 F. Supp.2d 112, 120 (S.D.N.Y. 1998) (same).
In this case, petitioner's claims hardly seem strong. (1) There is no constitutional obligation for a court to inform a defendant who is entering a plea of guilty about the immigration consequences of a conviction, see Henriquez v. Reon, No. 99 Civ. 8656 (RWS), 2000 WL 1644487, at *3 (S.D.N.Y. November 1, 2000) ("while criminal defendants have a constitutional right to be advised of collateral consequences of a plea such as incarceration, they currently have no right to be advised of collateral consequences such as the loss of the right to vote, loss of a driver's licence, or deportation") (internal citation omitted), and in any event the state trial judge did advise Auyeung that he would specifically recommend deportation (Plea Tr. at 5).
(2) It seems extremely unlikely that Auyeung could establish that his trial counsel was ineffective in failing to argue for youthful offender treatment, since (a) in light of the nature of the offense and of his prior record, Auyeung was an unlikely candidate for such treatment; (b) as the state court noted in rejecting his post-trial application, the trial court implicitly rejected the appropriateness of such treatment by imposing a sentence in excess of what would have been permitted had Auyeung been accorded youthful offender status; (c) the sentence was the result of a plea bargain that benefitted Auyeung by dismissing a number of additional charges; and (d) the Appellate Division affirmed his sentence despite his new counsels explicit argument that that court should accord him youthful offender treatment, something the Appellate Division apparently has the authority to do. See People v. Shrubsall, 562 N.Y.S.2d 290, 292 (4th Dep't 1990) ("The Appellate Division may exercise its interest of justice jurisdiction to adjudicate a defendant a youthful offender even if it does not conclude that the trial court abused its discretion in denying youthful offender treatment") (internal citations omitted).
(3) Finally, whatever merit there might be to Auyeung's theory that a state court's failure to follow required state procedure raises a federal due process claim, the state courts have rejected the underlying premise of his argument. Auyeung specifically argued in his § 440.20 application that state procedure was violated in his case, and the state courts held that it was not. See People v. Auyeung, No. 10262/95 (N Y Sup.Ct., November 5, 1999) (McLaughlin, J.), leave to appeal denied, 705 N.Y.S.2d 8 (1st Dep't 2000). Moreover, it is well established that the United States Constitution grants no independent due process right either to youthful offender treatment or to any particular procedure for denying it, so long as the trial judge imposed a sentence that was lawful under state law, as this sentence clearly was. See United States ex rel. Frasier v. Casscles, 531 F.2d 645, 647-48 (2d Cir. 1976) ("The granting or denial of youthful offender treatment is analogous to that of sentencing . . . . Once it is determined that the judge has exercised his discretion within statutory limits, appellate review is at an end") (internal citations omitted).
Nevertheless, the Court is reluctant to exercise its discretion to deny petitioner's unexhausted claims on the merits. Auyeung's plea agreement did not preclude youthful offender treatment; it required the judge not to sentence in excess of four to eight years, but did not preclude a lower sentence. (Plea Tr. at 5.) Determining whether counsel effectively represented Auyeung in negotiating the plea or in failing explicitly to argue for youthful offender treatment at sentence requires a greater familiarity with state practice and with the circumstances facing counsel and petitioner than this Court can obtain from the bare record of this case. Moreover, given the harsh consequences of denying a habeas application on the merits see 28 U.S.C. § 2244 (b) (requiring dismissal of successive habeas petitions after dismissal on the merits), the Court is reluctant to make a premature determination on the merits of a pro se claim that might benefit from a fuller presentation to a state court. The petition is therefore dismissed without prejudice to petitioner's refiling upon exhaustion of state court remedies.
III. Statute of Limitations
In light of the likelihood of future proceedings in this case, the court notes that the one-year statute of limitations for habeas petitions is tolled by the pendency of a petition for federal habeas corpus that is dismissed without prejudice for failure to exhaust state court remedies. See Walker v. Artuz, 208 F.3d 357, 361 (2d Cir. 2000) (interpreting the AEDPA's tolling provisions to "avoid penalizing state prisoners who properly have filed federal habeas petitions and are awaiting a response from the court"), cert. granted sub nom. Duncan v. Walker, ___ U.S. ___, 121 S.Ct. 480 (Nov 13, 2000) (No. 00-121). As other courts have recognized, however, dismissing a petition containing unexhausted claims may lead to difficulties under the limitations provision when the petitioner seeks to file a new petition after exhausting his or her claims. See Harmon v. People of the State of New York, No. 97 Civ. 2539, 1999 WL 458171, at *4 (E.D.N Y June 25, 1999) (noting that "[i]t is unclear whether simply dismissing this petition without prejudice could lead to future difficulties for [petitioner] regarding the tolling of the AEDPA's statue of limitations during the pendency of the state proceedings"). These problems may survive the Walker decision, since at least one other circuit has reached a different conclusion, Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999), and the Supreme Court has not yet ruled on the issue. Accordingly, as the court did in Harmon, it is appropriate in this case to dismiss the petition without prejudice to the petitioner's right to file an amended petition after he exhausts his state remedies so that the amended or resubmitted petition "can relate back to the date of the original filing and not be time barred." Id. (internal quotation marks and citations omitted); see also Hanson, 2000 WL 426420, at *2 (same).
CONCLUSION
Accordingly, the petition is dismissed without prejudice to petitioner's right to file an amended petition upon exhaustion of state court remedies.
SO ORDERED