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Case No. 04-CV-4149 (KMK).
March 31, 2005
Jose Shomo, Wende Correctional Facility, Alden, NY, Petitioner, Pro Se.
Robert M. Morgenthau, District Attorney, New York County, Morrie I. Kleinbart, Eli R. Koppel, Assistant District Attorneys, One Hogan Place, New York, NY, Counsel for Respondent.
OPINION AND ORDER
Petitioner Jose Shomo ("Shomo" or "Petitioner"), imprisoned by the State of New York on a murder and weapons possession conviction, petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent Michael Maher ("Respondent") moves to dismiss the habeas petition on the ground that Shomo has failed to exhaust his claims in state court pursuant to 28 U.S.C. § 2254(b). Specifically, Respondent argues Shomo failed to utilize available state remedies when he did not appeal the denial of his petition for a writ of error coram nobis to the New York Court of Appeals. For the reasons discussed below, the motion to dismiss is GRANTED without prejudice to refiling if Shomo's claims are exhausted.
Respondent's Notice of Motion appears to erroneously refer to the provision as 28 U.S.C. § 2244(b).
I. Background
On December 15, 2000, Shomo was convicted of murder in the second degree and criminal possession of a weapon in the second degree. The conviction was affirmed by the Appellate Division, see People v. Shomo, 757 N.Y.S.2d 272 (App.Div. 2001), and his application for leave to appeal was denied by the New York Court of Appeals, see People v. Shomo, 100 N.Y.2d 542 (2003).
Following this unsuccessful direct appeal, on May 28, 2003, Petitioner filed a pro se writ of error coram nobis, pursuant to the procedure outlined in People v. Bachert, 69 N.Y.2d 593 (1987), alleging ineffective assistance of appellate counsel based on his lawyer's failure to include a number of claims on direct appeal. The petition was denied by the appellate division on October 23, 2003. People v. Shomo, 767 N.Y.S.2d 65 (App. Div. 2003). Shomo concedes this adverse decision was not appealed to the New York Court of Appeals. Shomo explains in his habeas petition that he did not do so because "[b]y Statute a Petition for a Writ of Error is not appealable. [sic] to the New York State Court of Appeals." (Habeas Pet. ¶ 12(d))
On April 20, 2004, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his custody on essentially the same grounds raised in his writ of error coram nobis. On August 26, 2004, Respondent filed the instant motion to dismiss the petition on the ground that the claims raised are unexhausted because Shomo failed to seek leave to appeal the denial of his writ of error coram nobis to the New York Court of Appeals.
The petition is deemed filed as of the date it is delivered to prison officials. See Fernandez v. Artuz, ___ F.3d ___, 2005 WL 623141, at *2-*3 (2d Cir. Mar. 17, 2005). The petition was received by the pro se clerk's office in this District on April 26, 2004.
Specifically, the petition outlines eight issues appellate counsel allegedly failed to raise: (1) there was no probable cause for the warrantless search of Petitioner's apartment; (2) the subsequently issued search warrant lacked probable cause; (3) the lower court committed reversible error when it failed to comply with N.Y.C.P.L. § 690.40(1) (erroneously referred to as § 490.40(1) in a heading in Shomo's habeas petition (Mem. in Support of Habeas Pet. at 31)); (4) the prosecution's failure to turn over favorable Brady v. Maryland and People v. Rosario material to the defense deprived Petitioner of his constitutional rights to a fair trial; (5) the lower court's failure to hold an in depth Rodriguez hearing deprived Petitioner of his constitutional rights to a fair trial; (6) certain witnesses should have been precluded from identifying Petitioner at trial because of the prosecutor's failure to give proper notice pursuant to N.Y.C.P.L. § 710.30; (7) Petitioner's guilt was not proven beyond a reasonable doubt; and (8) the introduction of a certain witness's testimony about alleged prior bad acts and uncharged crimes was reversible error.
Respondent represents that Petitioner's pro se writ of error coram nobis alleged that appellate counsel failed to include seven claims on direct appeal: "(1) there was no probable cause for the police search of petitioner's apartment; (2) the search warrant that directed the police to search petitioner's apartment alleged inadequate probable cause; (3) the trial court violated New York Criminal Law Section [690.40 (erroneously cited as 490.40)]; (4) the People failed to disclose certain material pursuant to Brady v. Maryland and People v. Rosario; (5) there was no pretrial hearing regarding confirmatory identifications of petitioner; (6) the People failed to provide New York Criminal Procedure Law Section 710.30(1)(b) notice; (7) the People failed to prove guilt beyond a reasonable doubt." (Koppel Aff. ¶ 6)
Thus, it appears that Shomo raises an additional claim in his federal habeas petition — the eighth claim relating to the introduction of a witness's testimony regarding alleged prior bad acts and uncharged crimes — that arguably was not exhausted in the state court proceeding. Respondent, however, does not argue that Shomo failed to raise the same arguments below, only that he failed to appeal them to the highest court. (Koppel Aff. ¶ 8 ("[P]etitioner seeks a writ of habeas corpus, repeating the same claims he raised in his writ of error coram nobis to the Appellate Division, First Department."))
The Court need not address at this time the question of whether all of Petitioner's claims were raised before the state court. Because the Court concludes the petition should be dismissed because of failure to appeal to the New York Court of Appeals, the Court does not examine the issue of whether some of Shomo's claims have not been exhausted because he failed to raise them below.
A week later, on September 3, 2004, this case was reassigned to this Court. On January 10, 2005, this Court withdrew the referral of this case to a magistrate judge.
Shomo has submitted several responsive documents. Initially, it appeared that Shomo had not responded to the motion to dismiss, as the docket reflected that no response was filed. Therefore, on January 4, 2005, the Court issued an order providing Shomo with a final opportunity to respond by January 21, 2005. Shomo timely submitted a response on January 19, 2005 ("Shomo Response"). Subsequently, the Court located two undated documents Shomo appears to have submitted previously, although they were not properly filed or docketed: (1) an undated, typed document entitled "Opposition to Respondent[']s Motion to Dismiss Petitioner[']s Writ of Habeas Corpus" ("Undated Shomo Opposition"); and (2) an undated, handwritten document entitled "Addendum to Opposition to the Respondent['s] Motion to Dismiss Petitioner's Writ of Habeas Corpus" ("Undated Shomo Addendum"). These two documents were subsequently forwarded for docketing. The Court has reviewed and considered all of Shomo's responsive documents in rendering this decision on the motion to dismiss.
It appears that these documents had not been filed because of apparent procedural irregularities identified by the pro se clerk's office.
The Court notes that Shomo's Response appears to be largely duplicative of the undated documents.
II. Discussion
Petitioner alleges that his appellate counsel was constitutionally ineffective in failing to raise several purported defects in his state trial. Respondent, at this stage, does not challenge the merits of Petitioner's claim. Instead, Respondent limits his objection to the supposed failure of Petitioner to exhaust his remedies under New York state law. In particular, Respondent claims that Petitioner failed to appeal the denial of his writ of error coram nobis to the New York Court of Appeals. As a result, Respondent asks this Court to dismiss the petition without prejudice.A. The Exhaustion Requirement
Pursuant to 28 U.S.C. § 2254(b)(1), "[a]n 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." Section 2254(c) provides that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Thus, "[i]t is well-established that `a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.'" Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)) (additional citations omitted).
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." Rose v. Lundy, 455 U.S. 509, 518 (1982). Rigorous enforcement of this requirement "will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-19. Such a rule thereby "reduces friction between the state and federal court systems by avoiding the `unseem[liness]' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (quoting Darr v. Buford, 339 U.S. 200, 204 (1950)).
"To exhaust his federal claims, a habeas petitioner must `fairly present to the state courts the substance of his federal habeas corpus claim.'" Powell v. Greiner, No. 02 Civ. 7352, 2003 WL 359466, at *1 (S.D.N.Y. Feb. 18, 2003) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). This does not require petitioners to attempt to invoke "extraordinary remedies" to satisfy the exhaustion prerequisite. O'Sullivan, 526 U.S. at 844 ("[S]tate prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past."). However, exhaustion means, inter alia, that the petitioner must "present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); see also O'Sullivan, 526 U.S. at 848; Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005). This requires pursuit of even discretionary state appellate remedies. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan, 526 U.S. at 848; Garraway v. Phillips, No. 02 Civ. 9657, 2004 WL 1088097, at *3 (S.D.N.Y. May 14, 2004).
B. Whether Petitioner Failed to Exhaust
The initial question is whether there was an available state remedy that Shomo failed to exhaust. Shomo concedes that he did not appeal the denial of his writ of error coram nobis to the New York Court of Appeals. Historically, "there was no comprehensive statutory mechanism to address collateral claims of ineffective assistance of appellate counsel." People v. Stultz, 2 N.Y.3d 277, 281 (2004). New York courts "held, however, that a defendant who claims to be aggrieved by appellate counsel's failures could proceed by writ of error coram nobis before the appellate court in which the allegedly deficient representation took place." Id.; see also Sweet v. Bennett, 353 F.3d 135, 142 n. 7 (2d Cir. 2003) (citing People v. Bachert, 69 N.Y.2d 593 (1987)). However, "[i]n the absence of a statutory scheme, [the New York Court of Appeals] recognized that it had no power to entertain appeals from appellate orders granting or denying coram nobis relief." Stultz, 2 N.Y.3d at 281. Thus, until recently, there was no appellate remedy for a person, such as Shomo, whose writ of error coram nobis was denied by the appellate division.
However, effective November 1, 2002, "[t]he Legislature remedied the problem by amending [the statute] authorizing appeals (by permission) to [the Court of Appeals] from appellate orders granting or denying coram nobis relief based on claims of ineffective assistance or wrongful deprivation of appellate counsel." Id.; see also McPherson v. Greiner, No. 02 Civ. 2726, 2003 WL 22405449, at *12 n. 14 (S.D.N.Y. Oct. 22, 2003). The statutory provision authorizing such an appeal now provides, in pertinent part:
Provided that a certificate granting leave to appeal is issued pursuant to section 460.20, an appeal may, except as provided in subdivision two, be taken to the court of appeals by either the defendant or the people from any adverse or partially adverse order of an intermediate appellate court entered upon an appeal taken to such intermediate appellate court pursuant to section 450.10, 450.15, or 450.20 or from an order granting or denying a motion to set aside an order of an intermediate appellate court on the ground of ineffective assistance or wrongful deprivation of appellate counsel.
N.Y.C.P.L. § 450.90(1) (emphasis added to reflect 2002 Amendments). Such an appeal must be taken "[w]ithin thirty days after service upon the appellant of a copy of the order sought to be appealed. . . ." N.Y.C.P.L. § 460.10(5)(a). "The amendment should be accorded prospective application, and as such it authorizes motions for permission to appeal from only those Appellate Division orders made on or after the statute's effective date." People v. Jones, 100 N.Y.2d 606, 607-08 (2003).
In this case, Shomo's writ of error coram nobis was denied by the appellate division on October 23, 2003. People v. Shomo, 767 N.Y.S.2d 65. At that time, pursuant to the 2002 Amendment, Shomo could have appealed that decision to the New York Court of Appeals, but Shomo failed to exercise that available remedy. Therefore, Shomo's habeas petition is unexhausted. See Castro v. Fisher, No. 04 Civ. 0346, 2004 WL 1637920, at *26 (S.D.N.Y. July 23, 2004) ("[Petitioner's] challenge to the constitutionality of the coram nobis device was not pursued to the New York Court of Appeals, as it could and should have been."). C. How the Petition Should be Disposed
Shomo advances a number of arguments as to why his failure to exhaust should be excused. For example, Shomo has said that he was unaware of the change in the law and that the State of New York is responsible for this supposed lack of knowledge because the Appellate Division failed to inform him of his right to appeal the denial of his coram nobis application, and because the prison library allegedly did not maintain sufficiently current information to advise him of his appellate rights. To the extent these claims are necessary to provide a justification for his failure to appeal to the New York Court of Appeals, they should first be addressed to that court. Cf. Priester v. Senkowski, No. 01 Civ. 3441, 2002 WL 1448303, at *7 (S.D.N.Y. July 3, 2002) (rejecting claim by habeas petitioner that return to state court would be futile "because it is inconsistent with the doctrine of comity which assumes State courts will perform their assigned review function and because it is inconsistent with the explicit exhaustion requirement contained in 28 U.S.C. § 2254(b)(1)(A)"). For now, it suffices to say that as a matter of federal law Petitioner's alleged unawareness of the change in the law by itself is insufficient to excuse Shomo's failure to exhaust under these circumstances. See Castro, 2004 WL 1637920, at *26 (rejecting petitioner's argument that "No Appeal Lies From Coram Nobis Traditionally"); Priester, 2002 WL 1448303, at *5 ("The mere failure of a petitioner to be aware of a particular area of the law . . . does not constitute `cause.'"). Indeed, the exhaustion requirement admits only to limited exceptions, neither of which involves a petitioner's knowledge of his exhaustion duties. See Ruine v. Walsh, No. 00 Civ. 3798, 2002 WL 1349713, at *2 (S.D.N.Y. June 19, 2002) ("Th[e] exhaustion requirement is excused only if there is no available procedure for the petitioner to obtain review of his claim in the state courts, or if any state procedure available would be ineffective under the circumstances.") (citing 28 U.S.C. § 2254(b)(1)(B)(i)-(ii)).
Shomo also maintains that default may be excused where the alleged federal violation challenges the validity of the state trial itself, where the alleged federal violation is motivated by malice, and where failure to excuse the default would result in a miscarriage of justice. These arguments go either to the merits of Shomo's petition or to whether any procedural default may be excused. See Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1996) ("If there has been a `fundamental miscarriage of justice,' . . . a procedural default may be excused even without a showing of cause and prejudice.") (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). Because, as noted below, the Court concludes that Shomo's challenge to the effectiveness of his appellate counsel is unexhausted, but not necessarily procedurally barred, the Court does not reach the merits of the petition or the issue of whether if the claims are ultimately deemed procedurally barred by the state court, such procedural default is excused. Therefore, these claims potentially await resolution for another day.
Having determined that Shomo failed to exhaust his claims, there remains the question of how the Court should dispose of the petition. "Generally, a petition for writ of habeas corpus with unexhausted claims is dismissed without prejudice to allow the petitioner to return to the state courts to exhaust all available state judicial remedies." Montalvo v. Mantello, 233 F. Supp. 2d 554, 562 (S.D.N.Y. 2002). "However, if the petitioner no longer has `remedies available' in the state courts," the petitioner's claims may be deemed exhausted. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). In such an instance, "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." Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); see also Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (holding that petitioner's defaulted claim was properly denied without review of the merits); Bossett, 41 F.3d at 829 (noting that it would be "fruitless" to require petitioners to pursue procedurally barred claims in state court).
The same comity concerns that underlie the exhaustion requirement also drive the procedural default doctrine. See Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Harris, 489 U.S. at 260-64. "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman v. Thompson, 501 U.S. 722, 732 (1991). If a state habeas petitioner were allowed to bring procedurally defaulted claims in federal court, it would permit an end run around the federal courts' jurisdiction and undermine the states' interest in enforcing their own laws. See id. at 731.
In this case, as noted, Shomo's petition fails to get to first base since he has not exhausted his state remedy of seeking leave to appeal the denial of his coram nobis application to the New York Court of Appeals. However, it appears that Shomo's ability to seek such leave may be time barred. As noted above, an appeal from a denial of coram nobis relief must be taken "[w]ithin thirty days after service upon the appellant of a copy of the order sought to be appealed. . . ." N.Y.C.P.L. § 460.10(5)(a). A party, however, may obtain up to a one-year extension of time to file, pursuant to N.Y.C.P.L. § 460.30, which provides, in pertinent part:
. . . [U]pon motion to the court of appeals of a defendant who desires to take an appeal to such court from an order . . . of an intermediate appellate court, but has failed to make an application for a certificate granting leave to appeal to the court of appeals, or has failed to file a notice of appeal with the intermediate appellate court, within the prescribed period, such . . . court of appeals . . . may order that the time for the taking of such appeal or applying for leave to appeal be extended to a date not more than thirty days subsequent to the determination of such motion, upon the ground that the failure to so file or make application in timely fashion resulted from (a) improper conduct of a public servant or improper conduct, death or disability of the defendant's attorney, or (b) inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the expiration of the time within which to take an appeal due to the defendant's incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant. Such motion must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter.
N.Y.C.P.L. § 460.30 (emphasis added). This one-year time limit is inflexible. See People v. Thomas, 47 N.Y.2d 37, 43 (1979) ("We remain convinced that strict construction is appropriate since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them."); People v. Smith, 696 N.Y.S.2d 720, 720 (App.Div. 1999) ("Because the motion for an extension of time to take an appeal was made more than one year and 30 days from the date of sentencing, the motion is untimely. Defendant's failing health does not excuse the failure to move within the statutory time period.") (citing N.Y.C.P.L. § 460.30); People v. Peguero, 696 N.Y.S.2d 728, 728 (App.Div. 1999) ("Because the motion for an extension of time to take an appeal was made more than one year and 30 days from the date of sentencing, the motion is untimely. Motion to extend time to take appeal dismissed as untimely.") (citing N.Y.C.P.L. § 460.30).
While the New York courts strictly apply the one-year time limit, the New York Court of Appeals has allowed for the possibility that prosecutorial misconduct might bar the prosecution invoking the one-year limit under § 460.30. See Thomas, 47 N.Y.2d at 43 ("[B]ecause the omissions on the part of the prosecutor, though no doubt made more critical by assigned counsel's less than assiduous performance, frustrated the good faith exercise of the defendant's right to the remedy of CPL 460.30, the People should be estopped from invoking the bar of the one-year limit.").
In this case, both the time to seek leave to appeal to the New York Court of Appeals, and the time to obtain an extension to file an application for such leave, have apparently expired. The petition was denied by the appellate division on October 23, 2003. See People v. Shomo, 767 N.Y.S.2d 65. The thirty-day window to appeal therefore expired on November 22, 2003. The additional one-year grace period expired on November 22, 2004. Thus, any motion seeking leave to appeal brought now might not meet the requirement of being "made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter." N.Y.C.P.L. § 460.30(1).
It is unclear that Shomo could even allege facts that would entitle him to apply for the maximum one-year extension. Section 460.30 permits a would-be appellant to seek such an extension under limited circumstances, including allegedly improper conduct by a public official, any improper conduct, death or disability of the appellant's attorney, or the inability of the appellant and his attorney to have communicated. Failure to allege any of these is fatal to an application to file an appeal beyond the thirty-day deadline. See People v. Kaczynski, 507 N.Y.S.2d 946 (App.Div. 1986) (denying motion to extend time pursuant to § 460.30 "on the ground that the papers fail to contain sworn allegations of facts claimed to establish improper conduct, inability to communicate, or other facts essential to support the motion").
Therefore, it is conceivable Shomo no longer has an "available" remedy in state court, and, it is arguably pointless for this Court to provide Shomo with an opportunity to pursue his claims in state court. There is some authority for the proposition that under these circumstances, a petitioner's claim "should be denied under the `unexhausted but deemed exhausted and procedurally barred' doctrine." Castro, 2004 WL 1637920, at *26. This is "because any attempt at exhaustion in the face of this procedural default would be futile." Reyes, 118 F.3d at 139; see also Perez v. Greiner, 296 F.3d 123, 124 n. 2 (2d Cir. 2002) ("A petition is unexhausted only if the petitioner can still receive the relief he seeks from the state system. At the point when he brought his federal claim, [petitioner] no longer had the option of proceeding in state court, since only one petition is allowed under New York rules, and the time to file a petition had expired. Thus it was clearly proper to deem his claims exhausted for purposes of federal habeas review.") (internal citations omitted); Grey, 933 F.2d at 120 ("For exhaustion purposes, `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.' In such a case, a petitioner no longer has `remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).") (quoting Harris, 489 U.S. at 263 n. 9) (additional internal citations omitted).
There appears, however, to be a conflict of authority regarding when, if ever, it is appropriate for a federal court to deem a claim procedurally barred before providing petitioner with an opportunity to pursue fully his appellate rights in the New York state court system. In Pesina v. Johnson, the Second Circuit explained:
We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition. [Petitioner], by failing to appeal the denial of his Section 440.10 motion, has not fulfilled this requirement with respect to his ineffective assistance claim. . . . While [the] statutory limit may ultimately be held by state courts to preclude them from reaching the merits of [petitioner'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 [petitioner] 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. See 28 U.S.C. § 2254(c).913 F.2d 53, 54 (2d Cir. 1990) (per curiam) (internal citations omitted); see also Letlow v. Sabourin, 240 F. Supp. 2d 196, 201-02 (E.D.N.Y. 2002) ("Although we are now well beyond the one year time limit, and Petitioner has apparently not availed himself of the relief afforded by § 460.30, the Court hesitates to rule as a matter of state law that § 460.30 is unavailable.") (citing Pesina, 913 F.2d at 54) (additional citations omitted).
However, "[t]he Pesina rule has been called into question by several district courts based on Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994), and Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997), which note that it is pointless to require a habeas petitioner to return to state court to pursue a claim that is obviously procedurally barred." Castillo v. Hodges, No. 01 Civ. 2172, 2004 WL 613075, at *4 (S.D.N.Y. Mar. 29, 2004) (collecting cases); see also Weeks v. Senkowski, 275 F. Supp. 2d 331, 341 (E.D.N.Y. 2003) ("Although the Pesina rule clearly cuts against the grain of Bossett and mandates fruitless, time-consuming and expensive litigation, the case has never been explicitly overruled. In light of Bossett, this court will not follow Pesina. Petitioner's claim is rejected on the ground that it is procedurally barred. The Second Circuit rule in Pesina should be explicitly reconsidered.") (internal citations omitted). In addition to the Second Circuit's decisions in Bossett and Reyes, these cases have relied on the reasoning of Coleman v. Thompson, 501 U.S. at 729-32, which applied the independent and adequate state ground doctrine to dismiss a federal habeas petition when the state court had ruled that the petitioner had failed to meet a state procedural requirement, thus declining to reach the federal constitutional question. See Castillo, 2004 WL 613075, at *4; Thomas v. Greiner, 111 F. Supp. 2d 271, 277 (S.D.N.Y. 2000); DeVito v. Racette, No. CV-91-2331, 1992 WL 198150, at *4-*5 (E.D.N.Y. Aug. 3, 1992). According to this view, "[i]n order to comply with Coleman, the federal courts must at some point do what Pesina declined to do — `declare as a matter of state law that an appeal . . . is unavailable.'" Thomas, 111 F. Supp. at 278 (quoting Pesina, 913 F.2d at 54); see also DeVito, 1992 WL 198150, at *5 (" Coleman appears to put to rest Pesina's concern that federal courts lack the `authority' to declare claims procedurally defaulted at the state level.") (quoting Pesina, 913 F.2d at 54).
While there is much to be said for those courts that have recognized the wavering viability of Pesina, its demise cannot be declared by this Court. See Priester, 2002 WL 1448303, at *7 (explaining that while the "rule in Pesina has properly been called into question by several district courts . . . [,] [t]his Court . . . cannot overrule the holding in Pesina"); Bloomer v. Costello, No. 00 Civ. 5691, 2001 WL 62864, at *5 (S.D.N.Y. Jan. 24, 2001) ("[I]f Pesina is a `derelict on the waters of the law,' it is not for this Court to sink it.") (quoting Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting)). As Judge Lynch has observed, the Supreme Court's comments about the independent and adequate state grounds doctrine pre-date Pesina, and in Coleman, unlike in Pesina, the state court had explicitly ruled that the petitioner had procedurally defaulted under state law. Bloomer, 2001 WL 62864, at *5. Moreover, the Second Circuit's cases which post-date Pesina have considered defaults that involved different procedural provisions, and none of them have suggested overruling Pesina. Id. "Under these circumstances, it is not for a district court to declare Pesina overruled." Id.; see also Priester, 2002 WL 1448303, at *7 ("In an analogous context, the Supreme Court has held that `[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.'") (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)) (additional citations and quotations omitted); Carpenter v. Reynolds, 212 F. Supp. 2d 94, 97 (E.D.N.Y. 2002) ("Despite what appears to be a procedural bar, this Court cannot deem Carpenter's claims exhausted in light of . . . Pesina. . . .").
Under the binding authority of Pesina, therefore, the Court concludes that the most appropriate course of action in this case is dismissal of the petition without prejudice for failure to exhaust. That is, the Court will not deem the claims to be procedurally barred, but will allow Shomo to "presen[t] his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred." Pesina, 913 F.2d at 54.
Interestingly, Respondent does not advocate that the Court treat Shomo's petition as procedurally barred. Rather, Respondent maintains that "a dismissal for failure to exhaust is the appropriate remedy," pointing out that Petitioner "can still attempt to file an untimely leave application with the New York Court of Appeals." (Respondent's Br. at 3 n. 1).
The Court has considered, but rejects, the alternative of staying this action to permit Shomo an opportunity to exhaust his state remedies. While a stay might permit Shomo the opportunity to exhaust his state claims without risk that his petition would be time barred, there is no basis to retain jurisdiction over a petition that contains only unexhausted claims. See Carpenter, 212 F. Supp. 2d at 98; Ramos v. Superintendent of Clinton Corr. Facility, 01 Civ. 8743, 2002 WL 1226860, at *3 (S.D.N.Y. Apr. 12, 2002). Moreover, entering a stay in cases such as this would turn federal courts into a "jurisdictional parking lot" for unexhausted claims and undermine the comity interests promoted by the exhaustion requirement. Baity v. McCary, No. 02 Civ. 1817, 2002 WL 31433293, at *2 (S.D.N.Y. Oct. 31, 2002). In cases involving only unexhausted claims, the propriety of a stay is a different question than otherwise raised in cases involving mixed petitions — containing some claims that have been exhausted in the state courts and some that have not. See Rhines v. Weber, No. 03-9046, ___ S. Ct. ___, 2005 WL 711587 (Mar. 30, 2005); see also Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). In any event, the dismissal ordered in this case is without prejudice to Shomo to claim, if appropriate, that any subsequently filed petition would be timely as a matter of equity. See Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002) (holding that a habeas petitioner may be entitled to claim equitable tolling of the statute of limitations when the petition is dismissed to satisfy the exhaustion requirement); Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004) (dismissing habeas petition, but expressly noting that petitioner would not be barred from asserting equitable tolling claim on later petition).
Respondent further suggests that the filing of an untimely application for leave to appeal to the New York Court of Appeals would create "no time-bar problem . . . since [the] writ of error coram nobis would still be `pending'" under 28 U.S.C. § 2244(d)(2). (Respondent's Br. at n. 1 (citing Carey v. Saffold, 536 U.S. 214, 219-21 (2002))). Whether this holds true in this case is a question for another day.
Finally, there is the question of granting Shomo a certificate of appealability. For such a certificate to issue, Petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "`reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002), cert. denied, 538 U.S. 950 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (additional quotations and citations omitted). In this case, Petitioner has made no such showing. Accordingly, the Court denies a certificate of appealability.
III. Conclusion
For the reasons set forth above, it is herebyORDERED, that Respondent's motion to dismiss the petition for a writ of habeas corpus is GRANTED; and it is further
ORDERED, that the petition for a writ of habeas corpus is dismissed without prejudice for Petitioner's failure to exhaust his state law remedies; and it is further
ORDERED, that the Court declines to issue a certificate of appealability; and it is further
ORDERED, that the Clerk of the Court is directed to enter a judgment in favor of Respondent and to close this case.
SO ORDERED.