Babyrev v. Belfi

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x VADIM BABYREV, No. 19 CV 11693-LTS Petitioner,

-against-

BRIAN BELFI et al.,

Respondents. -------------------------------------------------------x

ORDER This matter, brought pursuant to 28 U.S.C. section 2254, was initiated by Petitioner filing his petition pro se. (Docket Entry No. 1.) The Court appointed counsel to represent Petitioner, (Docket Entry No. 8), and Petitioner, again pro se, filed a “Supplemental Pleading” requesting that the Court supplement his petition to include a claim that the Kirby Forensic Psychiatric Facility’s response to COVID-19 violates his right to Due Process protected by the Fifth and Fourteenth Amendments. (Docket Entry No. 20.) By order dated April 21, 2020, the Court directed counsel to review the “Supplemental Pleading” and advise the Court. (Docket Entry No. 21.) In the status report dated May 15, 2020, counsel requests that the Court construe the “Supplemental Pleading” as a petition brought pursuant to 28 U.S.C. section 2241 alleging violations of the Eighth Amendment as well as the Fifth and Fourteenth Amendment claims specifically asserted. (Docket Entry No. 24) The Second Circuit has held that “a state prisoner may challenge either the imposition or the execution of a sentence under Section 2254.” James v. Walsh, 308 F.2d 162, 167 (2d Cir. 2002); see also Cook v. New York State Division of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (a habeas corpus petition brought under 28 U.S.C. § 2254 is the proper vehicle for a state prisoner who is in custody pursuant to the judgment of a state court and challenges the constitutionality of his custody). Accordingly, the Court construes Docket Entry Number 20 as a supplemental element of Petitioner’s section 2254 petition asserting Fifth, Eighth, and Fourteenth Amendment violations. In light of the urgency of the COVID-19 issues raised, Respondent is directed to file its answer to the claims asserted (and deemed asserted) in Docket

Entry Number 20 by May 29, 2020. Petitioner’s counsel must file a response on Petitioner’s behalf by June 5, 2020. Respondent’s deadline to answer Docket Entry No. 1 remains June 8, 2020. (See Docket Entry No. 23). SO ORDERED.

Dated: New York, New York May 19, 2020 /s/ Laura Taylor Swain LAURA TAYLOR SWAIN United States District Judge