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recognizing that the rule in Pesina has been undermined by later authority but holding that a district court is required to follow it
Summary of this case from Priester v. SenkowskiOpinion
00 Civ. No. 5691 (GEL)
January 23, 2001
Jihad Bloomer, pro se, for Petitioner Jihad Bloomer.
Robert T. Johnson, District Attorney for Bronx County, Bronx, New York (Nancy D. Killian, Assistant District Attorney, Bronx, NY, of counsel),for Respondent Joseph Costello.
OPINION AND ORDER
On July 10, 2000, this Court's Pro Se Office received a petition for a writ of habeas corpus from Jihad Bloomer ("Bloomer" or "Petitioner") challenging his state conviction, upon his plea of guilty, for criminal sale of a controlled substance. For the reasons discussed below, the petition is dismissed without prejudice.
Background
By judgment rendered on August 24, 1999, in Supreme Court, Bronx County, petitioner was convicted, upon his guilty plea, of Criminal Sale of a Controlled Substance in the Fifth Degree (New York Penal Law § 220.21), and was sentenced to an indeterminate term of two and one-half to five years' imprisonment. On May 15, 2000, petitioner moved in the trial court for an order to set aside his sentence pursuant to New York Criminal Procedure Law §§ 440.10 and 440.20 (Killian Aff. Ex. 1) ("440 Motion"). Petitioner stated a long list of grievances, most of which pertained to the conditions of his confinement within New York state correctional facilities, and his denial of access to drug treatment programs. (Id. ¶¶ B-G.) Petitioner also alleged that his trial counsel was ineffective "by the power of persuasion," and deceived petitioner into a guilty plea by wrongfully advising that he would "make `work release' [after serving] one year." (Id. ¶ A.) On June 8, 2000, Justice Vincent T. Quattrochi, Supreme Court, Bronx County, denied the motion "in all respects." (Killian Aff. Ex. 3.) Petitioner never sought leave to appeal this denial to the Appellate Division, and the 30-day period within which leave could be sought has run.
The instant petition for a writ of habeas corpus was filed on or about July 10, 2000. Respondent moves to dismiss the petition under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, on the principal ground that petitioner has failed to exhaust his state remedies, as required by 28 U.S.C. § 2254(b).
The petition is dated June 28, 2000. It is unclear when it was received for mailing by the prison authorities, the date that determines "filing" of a prisoner's habeas corpus petition. See Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000). Since all relevant dates are well within one year of defendant's conviction in late August, 1999, let alone expiration of the time for seeking a writ of certiorari see Williams v. Artuz, 2001 WL 6708 (2d Cir. 2001), and since a state petition for collateral relief was pending for part of that period, the petition is clearly timely under § 2244(d).
Discussion
I. Non-Cognizable Claims
At the outset, it is clear that most of petitioner's claims are not cognizable on habeas corpus. Some of his claims seem to sound in denial of adequate medical and dental assistance (Pet'r Mem. Law at 1-2) (Ground B), which might conceivably suggest a federal civil rights claim under 42 U.S.C. § 1983. See, e.g., Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000). Most of his claims, however, state at most violations of state law, including claims that he should be permitted to enter various rehabilitative programs that might be available under state regulations or court orders. (Pet'r Mem. Law at 2-7) (Grounds C through G.) None of these arguments challenge the constitutionality of his confinement, and thus none are appropriately raised in a habeas corpus proceeding. See 28 U.S.C. § 2254(a) (providing that the writ of habeas corpus shall extend to persons in state custody "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States"); see, e.g., Gomez v. Kaplan, No. 94 Civ. 3292 (CSH), 2000 WL 1458804, at *5 (S.D.N Y September 29, 2000) ("While challenges to the fact or length of confinement fall within the traditional province of habeas corpus, . . . a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life") (internal citations and quotation marks omitted).
In view of petitioner's pro se status it would be appropriate under some circumstances to treat the petition as a civil suit challenging the conditions of his confinement. See e.g., Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("It is routine for courts to construe prisoner petitions without regard to labeling in determining what, if any, relief the particular petitioner is entitled to"). In this case, however, given that the petition indiscriminately blends confusing allegations of various sorts, very few of which state any federal claim at all, and given that petitioner does state one facially cognizable objection to his conviction, it seems more equitable and more efficient to deal with petitioner's habeas claim, and simply advise petitioner that to the extent he seeks admission to particular prison programs or challenges the medical care provided by prison authorities, he should pursue available state administrative or judicial remedies, or, to the extent he believes that he has been subjected to cruel and unusual punishment because his medical treatment fails to meet the standards set out in Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994) (and the cases cited therein), he should file an ordinary federal civil suit pursuant to § 1983.
II. Ineffective Assistance of Counsel
Petitioner does, however, state one constitutional objection to his conviction. He argues (as he did in his 440 Motion) that his court-appointed lawyer coerced or deceived him into a guilty plea by advising that petitioner would "make `work release' with serving at least one year, which was totally impossible." (Pet'r Mem. Law at 1) (Ground A). Although the state court did not separately address that claim, it clearly stated that petitioner's 440 Motion was "in all respects denied." Petitioner did not seek leave to appeal the denial of his 440 Motion, however, as authorized by NYCPL § 450.15. Respondent claims that petitioner's failure to appeal constitutes a failure to exhaust his remedies under state law, and thus bars his raising an ineffective assistance of counsel in this habeas proceeding.
Under § 2254(b)(1)(A), a petition from a state prisoner "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." To satisfy this requirement, "`it is not sufficient merely that [petitioner] has been through the state courts.'" Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994) (quoting Picard v. Connor, 404 U.S. 270, 275-76 (1971)). Rather, a petitioner "must fairly present his federal claims to the highest state court from which a decision can be had, informing the court of the factual and legal basis for the claim asserted," Diaz v. Mantello, 115 F. Supp.2d 411, 416 (S.D.N.Y. 2000), so that the state has an opportunity to correct any alleged constitutional violations. See Ellman v. Davis, 42 F.3d at 147 (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
Respondent cites apparently-controlling circuit authority holding that under the circumstances of this case, petitioner has not properly exhausted his state remedies. In Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990), exactly as in this case, Pesina had pled guilty to a state crime, and later sought state collateral relief under § 440.10, arguing for the first time that he was denied effective assistance of counsel in entering his plea. Like Bloomer, Pesina failed to seek leave to appeal the denial of his 440 motion to the Appellate Division, and instead sought relief in federal court under § 2254. By the time the petition was considered by the federal courts, the statutory time limit for such an appeal had passed. Id. at 54 (citing N.Y. Crim. Proc. Law § 460.10(4)(a) (McKinney 1983) (defendant must apply for leave to appeal denial of § 440 motion within 30 days of being served with the decision to be appealed)). Pesina argued that, because the time to appeal had passed, there were no state remedies available for him to exhaust. The Second Circuit rejected the argument:
In this case, Bloomer may have attempted to file his federal habeas petition while his time to appeal in state court had not yet expired. As described above, the 440 Motion was denied on June 8, 2000, and Bloomer's petition for habeas corpus is dated June 28, 2000. The petition was not received by this Court until July 10, 2000, so that, by the earliest point anyone in the federal court could have noticed the problem, a state appeal would already have been untimely. As described in note 1 above, the record does not reveal when Bloomer gave his petition to the prison authorities for mailing. The Pesina court does not give comparable dates, stating only that the time for appealing his 440 motion had passed as of the time the issue was addressed by the court. See id. 913 F.2d at 54.
While that statutory limit may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 action. Until Pesina presents his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures.913 F.2d at 54. Because the facts of the present case are indistinguishable from Pesina, it follows that Bloomer has failed to exhaust his claims by fairly presenting them to the highest state court available. Accordingly, Bloomer's petition must be dismissed without prejudice to his refiling upon exhaustion of state court remedies. See e.g., Gibriano v. Attorney General, 965 F. Supp. 489, 492 (S.D.N.Y. 1997) ("Although over three years has passed since the denial of Gibriano's 440.10 motion, his claims are not exhausted until presented to the highest state court") (citing Pesina).
I recognize that Pesina has been called into question by some district courts. See Rashid v. Kuhlman, No. 97 Civ. 3037 (RCC), 2000 WL 1855114, at *8 (S.D.N.Y. 2000); Thomas v. Greiner, 111 F. Supp. 271, 275-76 (S.D.N.Y. 2000); DeVito v. Racette, No. 91 Civ. 2331 (CPS), 1992 WL 198150, at *3 (E.D.N.Y. 1992). These cases typically rely on Coleman v. Thompson, 501 U.S. 722 (1991), which forcefully applied the independent and adequate state ground doctrine to bar habeas review of any federal claim found by a state court to be procedurally barred from review under state law. See id. 501 U.S. at 729 ("The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement"). The result in Coleman is logical where, as in that case, a state court has already determined that the petitioner's claims are procedurally defaulted as a matter of state law: the adequate and independent state ground doctrine generally precludes habeas courts from considering "an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 261 (1989) (emphasis added) (citations omitted).
The issue in the instant case, however, is what happens where the petitioner has never presented his purportedly defaulted claim to a state appellate court. In a footnote dictum, Coleman suggests that a federal habeas court may still find an adequate and independent state procedural bar even where a state court has never been given the opportunity to pass on the question of procedural default:
[I]f the petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas regardless of [whether] the decision of the last state court to which petitioner actually presented his claims [addressed the federal claim on the merits].Coleman, 501 U.S. at 735 n. 1. See also Harris, 489 U.S. at 263 n. 9 (1989) ("Of course, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred") (O'Connor, J., concurring). Judge Sifton, in thoughtful opinion citing this passage, suggests that "whatever the wisdom of announcing important rulings in footnotes, . . .Coleman appears to put to rest Pesina's concern that federal courts lack the "authority' to declare claims procedurally defaulted at the state level." DeVito v. Recette, 1992 WL 198150 at *3 On this view, Bloomer's petition not should not be dismissed for failure to exhaust state remedies (since he presumably has no state remedies available and it would be futile for him to return to the state courts for relief).
To the extent that denial of respondent's motion to dismiss on exhaustion grounds would be a victory for Bloomer, that victory would be decidedly Pyrrhic. Courts that have found state remedies unavailable in situations of this kind, and therefore find the exhaustion requirement inapplicable, universally apply the same logic to conclude that petitioner has procedurally defaulted his claim in state court. See e.g., DeVito (denying petition for procedural default). The argument is a strong one. As the Supreme Court has put it: "The purpose of the exhaustion requirement . . . would be utterly defeated if the prisoner were able to obtain federal habeas review simply be `letting the time run' so that state remedies were no longer available." Edwards v. Carpenter, 120 S.Ct. 1587, 1592 (2000) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). But if the claim is procedurally defaulted, habeas review will be denied unless the petitioner can demonstrate (1) cause for the default and actual prejudice as a result of the alleged constitutional violation, or (2) that failure to consider the federal claim will result in a fundamental miscarriage ofjustice. Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000). Neither party has briefed whether these exceptions might apply here. If they do not, however, the outcome of finding his claims "exhausted but defaulted" is worse for petitioner, because unlike dismissal for non-exhaustion, a denial for procedural default would potentially prejudice any future application for federal habeas, pursuant to 28 U.S.C. § 2244(b)'s limitations on "second or successive" habeas applications.
There is much to recommend Judge Sifton's view. Section 2254(b)(1), after all, precludes granting the writ unless petitioner has exhausted remedies "available" in state court, or unless "there is an absence of available State corrective process." Under these provisions, if Bloomer has in fact defaulted in the state courts, it is hardly a stretch to regard the option of belatedly seeking leave to appeal the denial of his 440 Motion as "unavailable." Nor would it be inappropriate per se for a habeas court to apply state procedural rules as though it stood in the state court's shoes. As Justice O'Connor points out, both the Supreme Court and lower federal courts have consistently addressed questions of state law in determining whether an unexhausted state remedy is genuinely available. See Harris, 489 U.S. at 269-70 (O'Connor, J., concurring) (precluding federal courts from applying state procedural default rules "would often result in a game of judicial ping-pong between the state and federal courts, as the state prisoner returned to state court only to have the state procedural bar invoked against him"). For example, inEngle v. Isaac, 456 U.S. 107, 125 n. 28 (1982), the Supreme Court noted that the exhaustion requirement applies "only to remedies still available at the time of the federal petition," and ruled that since the petitioners had completed their state appeals, and collateral review under state law was not available for claims that could have been raised on appeal, no state remedy was "available" to be exhausted. See also O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (finding procedural default where defendant did not appeal for discretionary review in state court and "there is no dispute" that state remedies are no longer available). The Second Circuit itself has applied a similar logic. InGrey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), decided just months afterPesina, the Court of Appeals relied on Harris and Engle to hold that a defendant who had failed to submit an issue to New York's Court of Appeals on direct appeal should not be required to file a second petition to that court, since "New York procedural rules plainly bar petitioner from attempting to raise [the issue, since] he has already made the one request for leave to appeal to which he is entitled." Similarly, the Court has ruled that the exhaustion requirement does not require a petitioner to file a 440 motion at all where it would be futile to do so under New York Law since the constitutional claim had been available on direct review but petitioner had failed to raise it. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); see also Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (same). It is not clear (at least on the surface) why the same logic should not apply to the failure to appeal denial of a 440 motion.
But if Pesina is "a derelict on the waters of the law," Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting), it is not for this Court to sink it; especially where the "current of precedents," id., appears calm (or at least not so turbulent). Harris was available to the Pesina court, and apparently not regarded as controlling. In Coleman, unlike Pesina, a state court had explicitly found the petitioner to have procedurally defaulted under state law. Thus, its footnote — upon which other courts in this district have relied — is dictum. The Second Circuit's cases finding claims "exhausted but defaulted" all deal with slightly different New York procedural settings than the one at issue here and in Pesina. None of them purport to overrule Pesina, which is cited in passing in Bossett, 41 F.3d at 828, and noted in Grey, 933 F.2d at 120 (albeit cryptically as "contra"). Under these circumstances, it is not for a district court to declare Pesina overruled.
For this Court, Pesina remains a binding precedent that is on all fours with the present case; accordingly, on its authority, the Court is constrained to dismiss the petition for failure to exhaust state remedies.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is dismissed without prejudice to petitioner's refiling upon exhaustion of state court remedies.