Opinion
No. 97 Civ. 5448 (MGC)
January 7, 2003
William Richardson, Bronx, New York, Petitioner Pro se.
Robert T. Johnson, District Attorney of the County of Bronx, Jean Joyce, Assistant District Attorney, Bronx, New York. Attorney for the Respondent.
William Richardson petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
BACKGROUND
Petitioner was convicted of criminal sale of a controlled substance in the third degree at a jury trial in the New York Supreme Court for Bronx County. On May 9, 1988, petitioner was sentenced to an indeterminate term of imprisonment of from four and one-half to nine years. On June 18, 1990, the Appellate Division unanimously affirmed the judgment of conviction. People v. Richardson, 557 N.Y.S.2d 65 (1st dep't 1990). On October 25, 1990, the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Richardson, 76 N.Y.2d 943 (1990).
On July 24, 1997, Richardson petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I dismissed the petition as time barred under 28 U.S.C. § 2244(d)(1). The Court of Appeals vacated that judgment and remanded the petition for further proceedings.
In his petition for habeas corpus, Richardson asserts that: (1) the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt; (2) he was deprived of a fair trial by the prosecutor's comments; and (3) the state court failed to correctly and adequately charge the jury on the defense of agency, thereby shifting the prosecution's burden of proof to petitioner. Richardson filed this petition before he was released from custody.
DISCUSSION
I. Exhaustion of Remedies
Respondent argues that petitioner has failed to exhaust his state remedies with respect to any of his claims. 28 U.S.C. § 2254(b)(1) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
Because petitioner has not shown that either section 2254(b)(1)(B)(i) or (B)(ii) applies, he must show that he has met the exhaustion requirement of section 2254(b)(1)(A). The exhaustion requirement is satisfied if the federal claim was fairly presented to the highest state court capable of reviewing the claim. Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991). Respondent argues that petitioner failed to exhaust his state remedies because he "simply enclos[ed] the Appellate Division briefs along with his application for leave to appeal to the New York Court of Appeals and referr[ed], only generally, to the various claims raised in his Appellate Division brief." In his application for leave to appeal, petitioner stated the following:
I am enclosing copies of the briefs filed in the Appellate Division and that Court's order and opinion. Please advise me of the judge designated to decide this application so that I may send that judge a follow-up letter in support of the application.
Petitioner did not identify or discuss any of his habeas claims.
The Second Circuit has addressed two related cases. In Grey, 933 F.2d at 120, the petitioner identified one claim in his leave to appeal letter to the New York Court of Appeals and also attached his Appellate Division briefs, which raised three issues including the one specified in the letter. The Second Circuit held that only the one expressly raised claim had been exhausted. Id. Similarly, in Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000), the petitioner argued one of his claims in the application for leave to appeal, and "asked that he be given permission to appeal `for all these reasons and the reasons set forth in his Appellate Division briefs.'" The Court held that "arguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly appraise the state courts of those remaining claims." Id. In contrast, in Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000), the petitioner did not identify or discuss any particular claim, but rather requested that the Court of Appeals consider and review all issues outlined in the attached Appellate Division briefs. The Court held that this explicit request to consider and review all issues outlined in the attached briefs fairly presented all the claims in the brief to the Court of Appeals. Id.
In this case, petitioner did not expressly request review of all the issues outlined in his appellate brief. Nor did he identify a single issue to the exclusion of the others, as in Jordan or Grey. Rather, petitioner merely stated in his application that he was enclosing his appellate division briefs, and did not mention any of his claims. In its opinion in Ramirez v. Attorney General of the State of New York, the Second Circuit stated:
We perceive the line draw between Morgan and Jordan to be as follows. References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal.280 F.3d 87, 97 (2d Cir. 2002). Petitioner does not meet the exhaustion requirement because he failed to clearly inform the Court of Appeals that he was asserting issues in his attached briefs as bases for appeal.
Petitioner is now barred from making any additional leave application because his application for leave to appeal has already been denied by the New York Court of Appeals. New York Court Rules § 500.10(a),Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1052, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995), Alston, 210 F. Supp.2d at 419. Nor may he now seek collateral review in the state courts because his claims either could have been, or were in fact, raised on direct appeal. New York Criminal procedure Law §§ 410.10(2)(a), (2)(c), Bossett at 829. Therefore, petitioner's claims are deemed exhausted' for habeas review, but his procedural default is an independent and adequate state law ground for the judgment. Grey v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Since petitioner has shown neither cause nor prejudice for his state delinquency, the petition must be denied. Grey at 162.
CONCLUSION
For the foregoing reasons, William Richardson's petition for a writ of habeas corpus is denied.
SO ORDERED.