Elleby v. The United States

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

TAYE L. ELLEBY,

Petitioner, 20 Civ. 2935 (PAE)

v. ORDER

BRANDON J. SMITH, Superintendent of Greene Correctional Facility,

Respondent.

PAUL A. ENGELMAYER, District Judge: On April 9, 2020, petitioner Taye L. Elleby filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking release from custody to home confinement due to the current pandemic. On May 22, 2020, the Court dismissed Elleby’s petition, without prejudice, because he had failed to exhaust his state remedies. Dkt. 12. On July 18, 2020, the Court received the attached letter from Elleby. The Court construes the letter as a motion to reconsider its May 22, 2020 ruling. Elleby represents that he has filed four motions with the New York County Supreme Court and the First Department of the Appellate Division, but he has not yet received a decision on any of the motions. The filing of these motions is insufficient to exhaust Elleby’s claims. See Curry v. Burge, No. 03 Civ. 0901 (LAK), 2003 WL 21230625, at *1 (S.D.N.Y. May 22, 2003) (existence of pending state proceeding indicated that petitioner had not exhausted his claims). Remedies are still available in state court, and, as observed by Chief Judge McMahon, the justices of the New York State Supreme Court have heard—and granted—many petitions related to the impact of COVID-19 on conditions of confinement. Bergamaschi v. Cuomo, No. 20 Civ. 2817 (CM), 2020 WL 1910754, at *4 (S.D.N.Y. Apr. 20, 2020). That Elleby would like his state-court proceedings to be resolved more quickly does not present a reason to excuse his lack of exhaustion. See Cuevas v. Pennsylvania, 19 Civ. 1733 (SHR), 2020 WL 1911511, at *3 (M.D. Pa. Apr. 20, 2020) (declining to excuse exhaustion requirement for COVID-19-related pretrial habeas claim, even

though petitioner was “displeased with the pace of his state-court proceedings”). Accordingly, the Court denies Elleby’s motion for reconsideration and reaffirms its May 22, 2020 opinion dismissing Elleby’s petition without prejudice. The Clerk of Court is directed to mail copies of the June 8, 2020 order, Dkt. 16, and this order to Elleby. SO ORDERED. ____________________________ Paul A. Engelmayer United States District Judge

Dated: July 20, 2020 New York, New York | aes ae 200V2955 (Me) le bal Me Lgeeye □

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