Fields v. Miller

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------x JAMIL FIELDS, Petitioner, ORDER -against- No. 23-CV-5428 (CS) MARK MILLER, Respondent. ----------------------------------------------------x Seibel, J. By Order dated August 23, 2023, (ECF No. 5), Chief Judge Laura Taylor Swain indicated that it appeared that Petitioner had not exhausted his state remedies as required, and gave him sixty days to file an amended petition “in which he alleges facts showing that he has exhausted the available state court remedies as to his grounds for habeas corpus relief.” She also explained that the amended petition had to “state his grounds for habeas corpus relief, the facts that support those grounds, and detail the steps that he has taken to exhaust the available state court remedies as to those grounds.” Petitioner did not do so in the time allotted. But by letter dated September 12, 2023, (ECF No. 6), he requested that the Court hold his petition in abeyance pending exhaustion of state court remedies. Whether the Court should grant Petitioner’s request may turn on whether he can show “good cause for failure to exhaust, potential merit, and a lack of intentionally dilatory tactics.” Rodriguez v. Uhler, No. 15-CV-9297, 2017 WL 9807068, at *9 (S.D.N.Y. Oct. 23, 2017), report and recommendation adopted, 2018 WL 1633568 (S.D.N.Y. Apr. 3, 2018)1; see generally Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). Accordingly, no later than December 20,

1A copy of this case is attached to this Order. 2023, Petitioner shall file an amended petition that: 1) states his grounds for habeas corpus relief and the facts that support those grounds; 2) details the steps, if any, he has taken to exhaust state remedies as to those grounds; and 3) explains why he has not yet exhausted and why he has not engaged in dilatory tactics. If his submission that does not fulfill all three of these requirements the petition will be dismissed without prejudice. Because Petitioner has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: November 6, 2023 White Plains, New York

AaskeR gee

2017 WL 9807068 1983 affirmance, upon which the Appellate Division had 2017 WL 9807068 apparently relied in determining that Petitioner's appeal had Only the Westlaw citation is currently available. been perfected, was that of another criminal defendant with United States District Court, $.D. New York. the same name as Petitioner, and that, in fact, Petitioner's direct appeal had not been perfected, as Petitioner claimed. Jose RODRIGUEZ, Petitioner, Respondent brought this to the attention of the Appellate V. Division, which then recalled and vacated its November 13, Donald UHLER, Respondent. 2014 order and sua sponte assigned Petitioner new appellate counsel for the purposes of prosecuting his coram nobis 15cv09297 (GBD) (DF) motion. The state coram nobis proceeding was thus reopened, and it is this Court's understanding that it is still pending. Signed 10/23/2017 Not only does this development affect the question of whether Attorneys and Law Firms Petitioner's claim for ineffective assistance of appellate counsel should still be considered exhausted for purposes of Jose Rodriguez, Malone, NY, pro se. federal habeas review, but it also affects this Court's statute- Alyson Joy Gill, New York State Attorney General, Brooklyn, of-limitations analysis. Indeed, Respondent, who originally NY, Lisa E. Fleischmann, New York State Office of the considered moving to dismiss the petition as time-barred, Attorney General, New York, NY, for Respondent. has now taken the position that the applicable statute of limitations for this habeas petition has not yet begin to run, as Petitioner's judgment of conviction never actually became REPORT AND RECOMMENDATION “final.” After considering each of the procedural issues that the petition now raises, this Court recommends that it be DEBRA FREEMAN, United States Magistrate Judge dismissed without prejudice, so that Petitioner's ineffective- assistance-of-appellate counsel claim, as well as his other two *1 TO THE HONORABLE GEORGE B. DANIELS, claims (which are both unexhausted), may first be considered US.D.J.: fully by the state courts. This habeas proceeding, commenced by pro se petitioner Jose Rodriguez (“Petitioner”) pursuant to Pll2g U.S.C. § 2254 and referred to this Court for a report and recommendation, is ina BACKGROUND highly unusual procedural posture. As set out in greater detail below, one of Petitioner's habeas claims—a claim that his A. Factual Background state appellate counsel rendered constitutionally ineffective Although Respondent represents that, “because there was assistance by failing to perfect Petitioner's direct appeal more 0 appeal, the trial was never transcribed” (Declaration of than 30 years ago—was fully exhausted at the time Petitioner Lisa E. Fleischmann, Esq., im Opposition to Petition, dated filed his habeas petition in this Court. As of that time, the | Mar. 3, 2017 (“Fleischmann Decl.”) (Dkt. 27) □ 24), the record showed (1) that Petitioner had raised the claim before | Record contains representations by the District Attorney as the New York Appellate Division through a 2014 motion for __ to the underlying facts of Petitioner's case (see SR-098-99). | a writ of error coram nobis, (2) that his coram nobis motion According to those representations, on April 21, 1981, at had been denied by the Appellate Division on November 13, about 2:40 a.m., Petitioner fired a shot at taxi driver, and 2014, on the basis of a Record seemingly showing that his then drove off in his own car. (See SR-098.) The taxi driver direct appeal had been perfected and his conviction affirmed — reported the shooting to two uniformed police officers on back in 1983, and (3) that, in 2015, the New York Court of patrol, and, as the officers then pursued Petitioner's car, Appeals had denied leave to appeal from the denial of coram _ Petitioner proceeded to fire three more shots into the □□□□□□□□ nobis relief. marked police car. (SR-098-99.) After Petitioner's car struck a parked car, he attempted to flee on foot, and, when one of the When, however, Respondent sought to assemble the state- _ officers exited the police car to follow him, Petitioner turned court record for purposes of responding to Petitioner's and fired another shot at the officers. (SR-099.) Eventually, habeas petition, Respondent reportedly discovered that the

2017 WL 9807068 Petitioner was apprehended with a five-shot revolver thathad = imaccurately reflects that Petitioner's appeal was affirmed, five spent rounds. (/d.) under appeal number 16790, on May 17, 1983 (id.). As acknowledged by Respondent (see Fleischmann Decl. { 6), the affirmance issued by the Appellate Division, First B. Procedural Histo Department, on May 17, 1983, under appeal number 16790, was an affirmance of the conviction of a different “Jose 1. Petitioner's Conviction and Sentence Rodriquez,” who had been convicted of a different charge, at a trial over which a different judge had presided, and who *2 Following a trial by jury in the Supreme Court of the had been assigned different appellate counsel (see SR-025 State of New York, New York County, at which the Honorable (Order of Affirmance on Appeal from Judgment 16790) ). Frederic S. Berman, J.S.C., presided, Petitioner was convicted — Accordingly, the file card and the affirmance referenced on on April 2, 1982, of two counts of attempted first-degree it cannot be used to support the conclusion that Petitioner's murder, im violation of New York Penal Law §§ 110.00 appeal was actually perfected and his conviction affirmed (see and Pl3507 (attempted murder of a police or corrections Fleischmann Decl. § 6 (acknowledging that the cited order officer), and one count of second-degree weapons possession, Teferenced a different appeal”) ), and Respondent has come in violation of New York Penal Law § 265.03. (See Petition forward with no other court records to demonstrate that Burke Under 28 U.S.C. for Writ of Habeas Corpus by a Person in ever took steps to proceed with the appeal. State Custody, dated Nov. 9, 2015 (“Petition” or “Pet.”) (Dkt. 1) 19 1, 4, 6: see also SR-019; Fleischmann Decl. § 2.) He is As discussed further below (see Discussion, infra, at Section currently serving two prison terms of 20 years to life for the I(B) ), Respondent has also provided no records to suggest attempted murders and a 15-year term for the weapon offense that Petitioner ever filed any collateral motion in the trial court all running concurrently. (Fleischmann Decl. § 2; see als 6 to vacate his conviction under Section 440 of the New York , Criminal Procedure Law. SR-019; Pet. § 3 (stating total sentence as 20 years to life).)

3. Petitioner's Coram Nobis Motion 2. Assignment of Appellate Counsel, and Counsel's Apparent Failure To Perfect the Appeal On April 16, 2014, approximately 31 years after Burke's Court ds show that Petitioner ntenced on Anril appointment, Petitioner filed a coram nobis motion in the Ourt TeCore’s ow ar remoner was sente ve ‘P Appellate Division, First Department, claiming that he “did 21, 1982 by Justice Berman, and that he was given written . oy . □ notice of his right to appeal, (See SR-019.) It would seem not receive “Meaningful Representation’ on direct appea : insofar as [his] counsel failed to submit an appeal on [his] that eetany Preece loge he as court i chal” (SR-002-03 (Notice of Motion); see also SR-004-08 First Depsrtment ened an order tssening ‘William (Supporting Affidavit); SR-O11-16 (Memorandum of Law).) ° ‘ Petitioner contended that he was “[unJaware of the Court Hellerstein, Esq. (“Hellerstein”), to represent Petitioner on | who eith a . f appeal. (SR-017.) Court records also show that, on February assigning any counsel who either filed a notice of appeal, 24, 1983, the Appellate Division granted a request by direct appeal or Anders brief, on [his] behalf.” (SR-005.)° Hellerstein to be relieved of that assignment and substituted He further contended that he [did not] advise his assigned Thomas P. Burke, Esq. (“Burke”) as Petitioner's new appellate counsel that he wished to waive his right to file an appeal counsel, simultaneously extending Petitioner's time to perfect challenging his criminal convictions and that “he did not the appeal to 120 days from the date of its order, or, if the knowingly and intelligently watve” that right. (SR-005-06.) record had not yet been filed, then to 120 days from the date of the filing of the record. (SR-018.) *3 The State opposed Petitioner's motion on or about August 14, 2014, by filing an affirmation of an Assistant District A file card, which Respondent explains was “maintained Attorney, setting out the procedural history of the matter, by the New York County District Attorney's Appeals as well as legal argument. (SR-026-31.) By way of that Bureau” (Fleischmann Decl. § 6) accurately reflects Burke's affirmation, the State pointed out the discrepancy between the appointment on February 24, 1983 (SR-023), but then records of the Appellate Division and those maintained by the , , District Attorney's Office. (See SR-027-28.) The State argued

perfected and [Petitioner's] [coram nobis] petition is entirely application by letters dated January 6, 2015 (SR-092-95) and baseless.” (SR-028 ¶ 4.) The State went on to argue, though, January 15, 2015 (SR-096-100), and Petitioner submitted a that even if Petitioner's appeal had not been perfected, his reply letter dated January 26, 2015 (SR-101-04). On June 29, coram nobis motion should nonetheless be rejected because, 2015, the Court of Appeals denied leave to appeal, without as a result of Petitioner's delay in seeking relief, his appeal opinion. (SR-105.) should be deemed to have been abandoned (SR-028-0 29 ¶ 5), or his motion should be rejected under the doctrine of laches (SR029-30 ¶ 6), or he should be found to have contributed 4. Petitioner's Habeas Petition and the Subsequent to his counsel's failure to perfect the appeal, and thus to Reopening of His State Coram Nobis Proceeding be unable to meet the standards necessary to demonstrate ineffective assistance of counsel (SR-030-31 ¶¶ 7-8). On November 9, 2015, Petitioner filed his habeas Petition in United States District Court for the Northern District of Petitioner filed a reply on or about August 25, 2014 New York, the district in which he was incarcerated. (See Pet.; (SR-033-44), explaining his delay in seeking coram nobis see also Dkt. 3.)4 On November 23, 2015, the matter was relief by stating that “his conversation with a fellow prisoner transferred to this Court. (See Dkt. 3.) about unrelated legal subjects [had] led to the revelation that [Petitioner's] court[-]appointed attorney was constitutionally In his Petition, Petitioner asserts three claims for habeas relief: charged with advising him of his appeal rights, and ... with (1) that he was denied the effective assistance of appellate perfecting an appeal on his behalf.” (SR-042 ¶ 49.) Petitioner counsel because his appeal had never been perfected (Pet. ¶ also stated in his reply that the “deficiency” of his appellate 12(A) ); (2) that he was denied the effective assistance of counsel caused him prejudice by “strip[ing] him of [not only] trial counsel because his trial counsel “never advised [him] his right to seek State review of his criminal conviction[,] of his right to testify at his criminal trial” (id. ¶ 12(B) ); but also any potential federal review as a consequence of and (3) that he was denied the effective assistance of trial not raising and exhausting any appellate issues in State counsel because his trial counsel “never communicated or court.” (SR-042-43 ¶ 51.) attempted to negotiate a favorable plea deal on Petitioner's behalf” (id. ¶ 12(C) ). Petitioner's second claim is based more By Order dated November 13, 2014, the Appellate Division specifically on an allegation that, at the time of his trial, denied Petitioner's coram nobis motion without opinion. Petitioner was a recent Cuban immigrant who did not speak (See SR-045.) In its Order, however, the court did recite English, but his trial counsel never communicated to him (apparently incorrectly) the procedural history of Petitioner's through a Spanish interpreter that he had the right to testify at direct appeal, by stating: trial. (Id. ¶ 12(B).) His third claim is based on an allegation that, in meeting with Petitioner in the courthouse “prisoner bull pen” before an interpreter had yet been assigned to assist A decision and order of this Court with the case, Petitioner's counsel was able to ask Petitioner, having been entered on May 17, 1983 with the assistance of other detainees, if Petitioner “would be (Appeal No. 16790), unanimously willing to take a plea,” but, after Petitioner “stated that he was affirming a judgment of the Supreme interested,” his counsel “never mentioned to Petitioner what Court, New York County (Walsh, J.), the plea offer was.” (Id. ¶ 12(C).) rendered on April 21, 1982 ... *4 By Order dated March 31, 2016, the Honorable Loretta A. Preska, Chief United States District Judge, directed (Id.) Thus, despite the State having pointed out the issue, it Petitioner to show cause why the Petition should not appears that the Appellate Division denied the motion on the be dismissed as time-barred. (Dkt. 6.) Petitioner filed an basis of an erroneous understanding of the appellate history Affirmation in response, in which he appeared to suggest of Petitioner's case. that his Petition was timely because his direct appeal had never been perfected, and thus his conviction had never been On or about November 26, 2014, Petitioner sought leave to rendered final. (See Dkt. 8.) After the Court received this 2017 WL 9807068 B. Daniels, U.S.D.J., who set a schedule for Respondent to Under the Antiterrorism and Effective Death Penalty Act of answer and oppose the Petition and for Petitioner to reply 1996 (“‘AEDPA”), a state prisoner seeking habeas relief in (Dkt. 10), and who referred the matter to this Court for areport federal court must file a petition within one year of the latest and recommendation (Dkt. 11). of four dates: In the course of investigating Petitioner's habeas claims, “5 (A) the date on which the judgment became final by Respondent discovered that the Appellate Division had, in the conclusion of direct review or the expiration of the fact, been mistaken when it stated that Petitioner's direct time for seeking such review, appeal was perfected and had been decided on May 17, 1983. (B) the date on which the impediment to filing an (See Letter to the Court from Lisa Ellen Fleischmann, Esq., a application created by State action in violation of the dated Nov. 23, 2016 (Dkt. 20), at | ( Some circumstances, Constitution or laws of the United States is removed, if some of which I leamed only this week, suggest that the applicant was prevented from filing by such State the appeal may not have been perfected.”); Letter to the action: Court from Lisa E. Fleischmann, Esq., dated Feb. 17, 2017 (2/17/17 Fleischmann Ltr.”) (Dkt. 24), at 1 (“The (C) the date on which the constitutional right asserted Appellate Division has since confirmed that no appeal was was initially recognized by the Supreme Court, if the litigated in [P]etitioner's case.”).) Apparently, Respondent right has been newly recognized by the Supreme court communicated with the Appellate Division about this (see and made retroactively applicable to cases on collateral 2/17/17 Fleischmann Ltr., at 1), and, on February 16, 2017, review; or the Appellate Division entered an order sua sponte assigning new appellate counsel for Petitioner “for the purposes of (D) the date on which the factual predicate of the claim or evaluating and prosecuting the .. motion for a writ of claims presented could have been discovered through the error coram nobis,” and recalling and vacating its order of exercise of due diligence. November 13, 2014, by which it had originally denied that motion. (SR-106-07; see also 2/17/17 Fleischmann Ltr., at □□□ U.S.C. § 2244(d)(1). Where a prisoner's conviction 2.) 5 became final prior to AEDPA's effective date of April 24, 1996, the prisoner would have had one year from that date, Respondent filed an opposition to Petitioner's habeas Petition “¢-, until April 24, 1997, to file a federal habeas petition, on March 3, 2017. (See Answer, dated Mar. 3, 2017 (Dkt. 26); absent a basis to toll the statute of limitations. See} □□□□ Fleischmann Decl. and Appendix thereto; Memorandum of Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Law in Opposition to the Petition for a Writ of Habeas Corpus, dated Mar. 3, 2017 “Resp. Mem.”) (Dkt. 28.) ). Petitioner □□□ — The statute of limitations is an affirmative defense that “is not file a reply. (See Dkt.) waived if not raised in the answer to the complaint.” Ose C. Subsequent to the receipt of Respondent's opposition papers, v. Amerindo Iny. Advisors, 639 F. Appx 752, 754 (2d □□□□□ this Court's Chambers requested that Respondent provide cert. denied, 136 S. Ct. 2429 (2016) (quoting zitton Indus., an update regarding the status of Petitioner's reopened state = Inc. y. Lehman Bros. Kuhn Loeb Inc., 967 E.2d 742, 752 coram nobis motion. Respondent informed the Court, on (2d Cir. 1992), as amended (Sept. 23, 1992) ). Where the August 1, 2017, that Petitioner's state-court proceedings — defense is not deliberately and intelligently waived by the were still pending. (See Letter to the Court from Lisa E. respondent, the court has discretion to dismiss the petition sua Fleischmann, Esq., dated Aug. 1, 2017 (Dkt. 30.) )° sponte as time-barred. Papay v. McDonough, 547 U.S. 198, 208-09 (2006). In particular, where the government “does not strategically withhold the limitations defense or choose DISCUSSION to relinquish it and where the Petitioner is accorded a fair opportunity to present his position,” a district court may I. APPLICABLE LEGAL STANDARDS “consider the defense on its own initiative and determine whether the interests of justice would be better served by A. Statute of Limitations addressing the merits or by dismissing the petition as time-

2017 WL 9807068 barred.” Wood v. Milyard, 132 S. Ct. 1826, 1833-34 (2012) “Petitioner may accomplish this in several ways, including by citing relevant provisions of the federal Constitution in (quoting Pay, 547 U.S. at 210-11) Gnternal quotation □ □ a . . ' his appellate brief, see 1 Davis v. Strack, 270 F.3d 111, marks omitted). If it appears, for example, that a respondent's 102 (od Cir. 2001 by □□□ ae federal failure to raise the statute of limitations defense was due to an ), or ; re eee ee Ph i ra “inadvertent error,” such as a mathematical error made when nave ter Oden 5009 tig ae □ TP. calculating the limitations period, it may be appropriate for ‘PP * A □ ) Gnternal quotation marks and a federal court to evaluate the time-bar issue sua sponte. See citation omitted). 547 U.S. at 211. A district court abuses its discretion, —_ In addition, to satisfy the exhaustion requirement, a habeas however, where it “override[s] a State's deliberate waiver of _ petitioner must present his federal claims to “the highest the limitations defense.” Pa Td. at 202. court of the pertinent state.” Chebere v. Phillips, No. 04cv296 (LAP), 2013 WL 5273796, at *19 (S.D.N.Y. Sept. 18, 2013) B. Exhaust (quoting Pazossert v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) xMaustion ton □ ). Where a petitioner has been convicted in a New York “State courts, like federal courts, are obliged to enforce . . . state court, he may exhaust a federal claim challenging his federal law,” P@lo'suitivan y. Boerckel, 526 U.S. 838, 844 conviction by presenting the claim on direct appeal to the (1999), and, as a general matter, a federal court may not Appellate Division, and then by seeking leave to appeal to a ren ee “hn of ven le mes the the New York Court of Appeals. Pl Galdamez v. Keane, 394 pent toner as exhauste the remedies avalla ° mt state F.3d 68, 74 (2d Cir. 2005). Where a claim is not appropriate courts, id. (“[W]hen a prisoner alleges that his continued . . for direct appeal because it cannot be demonstrated on the confinement for a state court conviction violates federal . . . : basis of the pretrial or trial record, a petitioner may exhaust law, the state courts should have the first opportunity to . eo, : . 2 : : the claim by raising it to the state trial court in a collateral review this claim and provide any necessary relief.”); see also J. . . . . post-conviction motion, typically in a motion made pursuant PEzalawin v. Reese, 541 U.S. 27, 29 (2004). “This rule of — to Section 440 of the New York Criminal Procedure Law. comity reduces friction between the state and federal court See e.g., Reyes v. Phillips, No. 02cv7319 (LBS), 2005 WL systems by avoiding the unseemliness of a federal district 475544, at *4 (S.D.N.Y. Mar. 1, 2005) (‘[A] motion under ee a state court conviction viet the a Pan y. Crim. Proc. Law § 440.10 was the appropriate vehicle courts having had an opportunity to correct the constitutiona with which to exhaust [petitioner's] ineffective-assistance- violation in the first instance.” Pa O'Sullivan, 526 US. at 844 of-counsel claim insofar as it relied upon evidence outside (quotation marks, internal alteration, and citations omitted); the record.”). To exhaust the claim fully, the petitioner must see also P@Rhines v. Weber, 544 U.S. 269, 273-74 (2005) then seek hee to ee the denial “ the Section (‘the interests of comity and federalism dictate that state eataed hee sold wh owes. “a won courts must have the first opportunity to decide a petitioner's h 6 sia h New York | ? □□ □ claims” (citation omitted) ). Under AEDPA, the only times a he di ), alt ous cn t ae □ or when a federal court may grant habeas relief absent full no further discretionary appeal to the Court of Appeals, see . . i. ee Ramos vy. Walker, 88 F. Supp. 2d 233, 234 n.3 □□□□□□□□□ exhaustion are where it appears that there is either “an absence : . . yee . 2000). Finally, a petitioner may exhaust a claim of ineffective of available State corrective process” or “circumstances exist i Ib hat clai h that render such process ineffective to protect the rights of the assistance or appe ate counse y raising t at claim to the Appellate Division on a motion for a writ of error coram [petitioner].” Pag us.c. § 2254(b)(1). nobis, and by then seeking leave to appeal the denial of that motion to the Court of Appeals. See Shomo vy. Maher, No. *6@ To satisfy AEDPA's exhaustion requirement, a habeas 04cev4149 (KMK), 2005 WL 743156, at *3 (S.D.N.Y. Mar. petitioner must first “fairly present” his federal claims to the 31, 2005) (citing N.Y.C.P.L. §§ 450.90(1), 460.10(5)(a) ). state courts, in federal terms, thereby affording those courts the “ “opportunity to pass upon and correct’ alleged violations — Where a petitioner presents one or more unexhausted claims of ... prisoners’ federal rights.” a Baldwin, 541 U.S. at 29 in. a habeas petition, the district court may dismiss the petition Fa without prejudice, or it may stay the petition and hold it in Duncan v. Henry, 513 U.S. 364, 365-66 (1995) ). abeyance, so as to allow the petitioner to exhaust the claim(s)

2017 WL 9807068 without risk that the one-year limitations period will expire 103. The Appellate Division's later recall and vacatur of its prior to the time when the petitioner would realistically be | November 2014 decision (SR-106-07), however, changed this able to return to the federal court, should his claims berejected analysis. From the information that has now been provided by the state courts. See generally Rhines. For example, where by Respondent, this Court understands that, as Petitioner a petitioner has “reasonable confusion” as to whether a state contends, his appeal was never perfected. (See 2/17/17 filing would be “properly filed” (such that it would toll Fleischmann Ltr.) Further, this Court has been presented with the statute of limitations under Plog USS.C. § 2244(d)(2) no documentary evidence that the Appellate Division ever ), the Supreme Court has suggested that the petitioner may formally deemed Petitioner's appeal to be abandoned and a ‘protective’ petition in federal court{.] ... asking the dismissed it on that basis. Cf Rodney v. Breslin, No. 07cv4519 federal court to stay and abey the federal habeas proceedings (SLT), 2007 WL 3353675, at *3 (E.D.NY. Nov. 9, 2007) (rejecting petitioner's argument that his conviction had never until state remedies are exhausted.” Pap ace v. DiGuglielmo, become final because, despite counsel's failure to perfect the 544 US. 408, 416 (2005). Under Rhines, though, a district appeal, “the Appellate Division nonetheless dismissed the court should stay a habeas petition only “if the petitioner —_ appeal as abandoned ..., thereby concluding direct review and had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication rendering the conviction final for purposes of "28 U.S.C. § that the petitioner engaged in intentionally dilatory litigation 2244(d)(1)(A)”). tactics.” Id. at 278. “[I]t is the petitioner who has the burden of demonstrating “good cause’ for his failure to exhaust Given the language of Palos U.S.C. § 2244(d)(1), which previously any unexhausted claims.” Perkins yv. LaValley, No. provides that the AEDPA statute of limitations runs from llev3855 (JIGK), 2012 WL 1948773, at *1 (S.D.N.Y. May _ the Jatest of the specified trigger dates—one of which is 30, 2012). “the date on which the judgment became final by the *7 Where a habeas claim has not been fully exhausted in the cncusion of dict review.” Mize USC § □□□□□□□□ state courts, the federal court may nonetheless deny the claim . concludes that Respondent is correct when he now takes on the merits, under Palzg ULS.C. § 2254(b)(2). The court the position that, in this case, “the limitations period has should only deny an unexhausted claim, however, where it is not begun to run.” (Resp. Mem., at 9.) Moreover, by plainly without merit. Edwards v. Superintendent, Southport taking this position, Respondent has not merely ignored, CE, 991 F. Supp. 2d 348, 381 (E.D.N-Y. 2013). or failed to raise, a potential statute-of-limitations defense. In early correspondence, before learning that Petitioner's appeal had not been perfected, Respondent informed the I. THE PETITION SHOULD BE DISMISSED Court that she would likely challenge the Petition as time- WITHOUT PREJUDICE. barred. (See Letter to the Court from Lisa Ellen Fleischmann, A. Petitioner's Claims, While Old. Do Not Appear To Esq., dated Nov. 9, 2016 (“11/9/16 Fleischmann Ltr.”) (Dkt. Be Time-Barred. 16) (“... I will probably move to dismiss this petition on As a threshold matter, and due to the significant age of the ground that it s untimely”).) Evidently, Respondent Petitioner's claims, it is appropriate for the Court to consider reevaluated that position after determining that Petitioner . the potential application of the one-year AEDPA statute of conviction was never affirmed or his appeal dismissed, and limitations to those claims. decided that a statute-of-limitations defense would not be viable. Respondent's decision not to raise such a defense At the time the Petition was filed in federal court, it —and, indeed, Respondent's affirmative statement that the appeared that the statute of limitations had run. Based on the Petition 1S not time-barred—must therefore be seen as a information recited in the November 13, 2014 decision of deliberate, considered choice, not one based on oversight the Appellate Division, it seemed that Petitioner's conviction or computational STTOr. In these circumstances, even if the had been affirmed in 1983 (SR-045), and thus had been Court were to disagree with Respondent's analysis, it should rendered final well prior to AEDPA's effective date of April not override Respondent's waiver of any statute-of-limitations 4, 1996, such that any habeas petition filed later than April 4, defense. See Pood, 132 S. Ct. at 1833-34. 1997 would have been untimely, see Pa" Ross, 150 F3d at

2017 WL 9807068 *8 For these reasons, despite the age of Petitioner's claims, appeal the original decision.” Id. (emphasis in original). The I do not recommend that the Petition be dismissed on statute- | court considered whether, in light of this “strange turn of of-limitations grounds. events,” the petitioner's habeas claim should be considered exhausted, id., and, after an “exhaustive search” for factually similar cases, found “no case law ... that clearly held that such B. All of Petitioner's Claims Are Unexhausted. a circuitous appellate process indicate[d] a failure to exhaust As described above, Petitioner raised his first habeas claim remedies by the [p]etitioner,” id. at *9. Nonetheless, the court —that he was denied the effective assistance of appellate —_yltimately declined to decide the issue and disposed of the counsel by his counsel's failure to perfect Petitioner's appeal claim on alternate grounds. Id. —in the Appellate Division, by way of a motion for a writ of error coram nobis, and, when that motion was In this case, this Court finds that the interests of comity initially denied, he sought to raise the claim in the Court counsel in favor of finding that Petitioner's claim is of Appeals, which denied leave to appeal. Further, at both unexhausted. As previously noted, federal courts may only state levels, Petitioner raised this claim in federal terms. (See grant habeas relief absent full exhaustion in limited cases SR-006 (citing the Sixth Amendment in coram nobis motion); — where there is “an absence of available State corrective SR-013-14 (relying on FS siickland v, Washington, 466 U.S. process,” or such process is “ineffective” and cannot protect 668 (1984), in support of motion); see also SR-057 (arguing the petitioner's rights. Fal, USC. § 2254(b)(1). This to the Court of Appeals that it should review the question = gase would not qualify under cither exception. Indeed, of “[w]hether a criminal conviction is constitutionally valid to this Court's understanding, Petitioner, through newly when there is no evidence that the indigent defendant was assigned counsel, is currently in the process of briefing represented on direct appeal ...”).) As all that is generally his ineffective-assistance-of-appellate-counsel claim to the required for exhaustion of a habeas claim is that the petitioner Appellate Division. Under the particular circumstances “give the state courts one full opportunity to resolve any present here, Petitioner's first claim should no longer be constitutional issues by invoking one complete round of the considered exhausted for purposes of habeas review. State's established appellate review process,” P@o'suitivan, As: a 48 US. 81. 92 *9 Further, it is clear that neither of Petitioner's other two 926 US. at 845; ee ord Me bes ‘th habeas claims are exhausted. Both his second and third claims mppeanet at the an oe ms a ena at —that his trial counsel was ineffective for failing (a) to advise t ° ° orts that had been made by Petitioner to exhaust him of his right to testify at trial, and (b) to communicate this claim were sufficient. When, however, the Appellate or negotiate a plea deal (see Pet. | 12(B), (C) }—are off- Division then recalled and vacated its coram nobis decision, the-record claims that could have been raised in a collateral effectively restoring Petitioner's coram nobis motion to he motion to vacate his conviction under Section 440 of the docket and providing him with an opportunity to advance his New York Criminal Procedure Law. In his Petition, however, ineffective-assistance-of-appellate-counsel claim ab initio, Petitioner makes no mention of ever filing a Section 440 the exhaustion analysis for this claim became more complex. motion. (See Pet. $f 10, 11 (referring solely to coram nobis law f his Cireui motion, in response to the question, “Other than a direct i coun has _ peated any case aw cL t i Circuit appeal from the judgment of conviction and sentence, have on the question ° oh a state on hee rece oe vacatur you previously filed any petitions, applications, or motions of a prior order should impact ex austion | or Purposes with respect to this judgment in any court, state or federal?’).) of habeas review. eee one weve vi ts sol Nor does the presented state-court record contain a copy of in Page v. Greene, 0. OSev3985 ( 5 ( ), d any such motion. As Respondent points out, there is no time- WL 8971503, at “8-9 Sn 2 ee bar to Petitioner's bringing a Section 440 motion (see Resp. recommendation), adop ted by 2012 WL 4477548 ( Mem., at 7) (citing Mercedes v. Superintendent, No. 12cv0687 Sept. 28, 2012), in which, as here, the Appellate Division (DNH), 2014 WL 2711803, at *6 (N_D.N-Y. June 16, 2014) ) had recalled and vacated its original decision and substituted and thus Petitioner still has an avenue available to him to an order allowing petitioner to reareue his appeal. id. at present these ineffective-assistance-of-trial-counsel claims in *8. The petitioner, however, did not notify the Court of state court Appeals of the Appellate Division's action, and the Court , of Appeals subsequently “denied [the] [petitioner's leave to

2017 WL 9807068 For these reasons, this Court finds that, while seemingly impermissible here. (See Resp. Mem., at 9 (citing, inter alia, timely, none of Petitioner's habeas claims have yet been Pantojav. New York State Div. & Bd. of Parole, No. □□□□□□□□ exhausted. (CS) (PED), 2013 WL 866869, at *6 (S.D.N_Y. Jan. 10, 2013) (report and recommendation), adopted by 2013 WL 865905 (S.D.N.Y. Mar. 8, 2013) ).) This Court does not agree, as C. In the Unusual Circumstances Presented, Dismissal Pace, cited above (see Discussion, supra, at Section I(B) ), Without Prejudice Is the Appropriate Result. supports the proposition that a “protectively filed” petition As all of Petitioner's habeas claims should be considered may be stayed, even if all of the claims presented therein are unexhausted, and as Petitioner has not demonstrated that State unexhausted, see id. Nonetheless, for Petitioner to obtain a corrective procedures are either currently unavailable to him —_gtay of his entire Petition under Pace, he would at least have or have been rendered ineffective, habeas relief cannot be to show good cause for his failure to exhaust his claims, see granted by the Court. Pag U.S.C. § 2254(b)(1)(B). id.: see also rhines, 544 US. at 277.° While Petitioner can show that he tried to raise his ineffective-assistance-of- Further, although a district court is permitted, under AEDPA, ay nelfate-counsel claim at all available state levels prior to to dismiss unexhausted claims where they have no merit, filing his habeas Petition, he has not made, and seemingly see U.S.C. § 2254(b)(2), this Court cannot conclude, cannot make, a showing of good cause for his evident failure at this juncture, that Petitioner's claims are meritless. As to exhaust his ineffective-assistance-of-trial counsel claims. to his first claim, while an appellate attorney's failure to pursue an appeal will not necessarily constitute constitutional *10 Moreover, even if a stay were permissible in this □ a case, Respondent argues that the usual rationale for staying ineffective assistance of counsel, see generally |~ Roe v. we a habeas petition—that, for statute-of-limitations reasons, Hlores-Ortega, 10'S. Ct 1029 (2000), ut possible that to do otherwise would effectively deprive the petitioner of Petitioner could demonstrate ineffective assistance in this . . . any opportunity to place his claims before the Court for case, see id. Absent development of the record, which should occur, in the first instance, in a state forum, this Court habeas review, see PS rhines, 544 U.S. at 274-76—A4s not should not attempt to make the merits determination. See present here. As discussed above, Respondent now asserts id. at 484-85 (holding that, under Strickland, the question that the statute of limitations has not even begun to run of whether appellate counsel's failure to pursue an appeal =m this case. (See Discussion, supra, at Section II(A).) On constituted ineffective assistance is a fact-specific inquiry). that basis, Respondent contends that “the rationale for the Similarly, development of the record would be needed to stay and abeyance procedure is inapplicable here.” (Resp. assess the merits of Petitioner's second and third claims. As | Mem., at 9 (quoting Owens v. New York State Parole Respondent notes (see Resp. Mem., at 7-8), those claims turn Bd., 13cv8057 (PAE) (HBP), 2014 WL 5089364, at *6 on questions as to what transpired between Petitioner andhis (S-D.N.Y. Sept. 25, 2014) ).) In other words, Respondent trial counsel off the record, questions that could be explored _ takes the position that, as there is no meaningful risk that in the context of a Section 440 motion that Petitioner could _ the statute of limitations period will run while Petitioner still make to the trial court. ’ Without an underlying record, pursues his State-court remedies, the dismissal □□ his this Court is not in a position to determine whether Petitioner's current petition without prejudice would not have the trial counsel actually failed to inform Petitioner of his right to effect of causing him to forfeit later federal review of testify at trial, or failed to communicate a plea offer, thereby a potentially meritorious ineffective-assistance-of-appellate- depriving him of his Sixth Amendment right to the effective counsel claim. Thus, Respondent suggests that there would be no sound policy reason to keep this matter open while assistance of trial counsel. Dismissal under Paz: US.C. § Petitioner prosecutes his claims in the state courts. 2254(b)(2) would thus be improper. This argument as to why a stay is not needed in this case This Court has also considered whether it would be 9 protect Petitioner's federal rights is persuasive, and I appropriate here for the Court to stay the petition and hold seeommend that the Court accept the argument and dismiss these proceedings in abeyance, while Petitioner exhausts the Petition without prejudice on the ground that a stay is his claims. Respondent argues that, as the Petition in this pot necessary to prevent the forfeiture of Petitioner's claims. case is not a “mixed petition,” /.e., one contaming amix of The Court's acceptance of, and reliance on, Respondent's exhausted and unexhausted claims, a stay would be simply

2017 WL 9807068 argument would afford Petitioner still further protection, Pursuant to Palos U.S.C. § 636(b)(1) and Rule 72(b) of as Respondent would then be hard-pressed—and likely the Federal Rules of Civil Procedure, the parties shall have judicially estopped—from asserting a contrary position on fourteen (14) days from service of this Report to file written the statute of limitations in a subsequent proceeding, should —_ objections. See also Fed. R. Civ. P. 6 (allowing three (3) Petitioner's coram nobis motion be denied anew by the state — additional days for service by mail). Such objections, and courts, and should he then seek to file a new habeas petition. any responses to objections, shall be filed with the Clerk of See generally Pa New Hampshire v. Maine, 532 US. 742, 749 Court, with courtesy copies delivered to the chambers of the (2001) (“{W]here a party assumes a certain position in a legal Honorable George B. Daniels, United States Courthouse, 500 proceeding, and succeeds in maintaining that position, he may Pearl Street, New York, New York 10007, Room 1310, and to not thereafter, simply because his interests have changed, the chambers of the undersigned, United States Courthouse, assume a contrary position....” (ternal quotation marks and 500 Pearl Street, Room 1600, New York, New York 10007. citation omitted) ) Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE In sum, this Court finds that all of Petitioner's habeas claims OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL are currently unexhausted; that, despite the age of Petitioner's RESULT IN A WAIVER OF OBEJCTIONS AND WILL claims, the AEDPA statute of limitations has not yet begun PRECULDE APPELLATE REVIEW. See Pa,, homas y. Arn, t ; that, for thi Petiti 1 ffectivel fret any potential mentoous federal claims bya decision 474 US. 10, 155 (1989); ArL-C1O Pension Fund u. Vy . . . » A F.3d 1049, 1054 (2 J 1 □□ by this Court to dismiss the Petition without prejudice, rather Herrmann, 9 ¥.3d 1049, 1054 ( d Cir, 1993), Frank . v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek vy. than to stay the Petition and hold these proceedings in abeyance; and that the Petition should therefore be dismissed = Canadair Lid., 838 F.2d 55, 58 (2d Cir. 1988); P@veCarthy without prejudice to refile. v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). *11 If Petitioner does not have access to cases cited herein that are reported only on Westlaw, he may request copies NCLUSION . CONCLUSION from Respondent's counsel. See Local Civ. R. 7.2 (“Upon For all of the foregoing reasons, I respectfully recommend request, counsel shall provide the pro se litigant with copies of that the Petition for a writ of habeas corpus be dismissed [cases and other authorities that are unpublished or reported in its entirety, without prejudice. Further, I recommend exclusively on computerized databases that are] cited in a that the Court decline to issue a certificate of appealability decision of the Court and were not previously cited by any pursuant to 28 U.S.C. § 2253(c)(1)(A) because, if the Petition Patty”). is dismissed without prejudice to refile, Petitioner cannot yet have made a substantial showing of the denial of a All Citations constitutional right.” 28 U.S.C. § 2253(c)(2). Not Reported in Fed. Supp., 2017 WL 9807068

Footnotes

1 The State Court Record (appended to the Fleischmann Decl. (see Dkts. 27-1 & 27-2) ) is cited herein by reference to its page numbers, which have been stamped in the form “SR-___.” 2 It not only appears that Petitioner was not released on parole, but also that, for a separate crime committed while he was incarcerated (first-degree manslaughNter, in violation of PlNew York Penal Law § 125.20(1) ), he was sentenced to an additional term of imprisonment of 15 years. (See Fleischmann Decl. § 2.)

2017 WL 9807068 3 An “Anders brief’ is an appellate brief filed by court-appointed counsel who seeks to withdraw from representing the appellant on the ground that there is no non-frivolous basis for the appeal. The brief must identify all possible grounds for appeal found in the record, so as to enable the court to determine whether an appeal would be frivolous and the attorney should be permitted to withdraw. See Pa anders v. California, 386 U.S. 738 (1967). 4 Under the so-called “prison mailbox rule,” see -ouston v. Lack, 487 U.S. 266, 270, (1988), a pro se prisoner's habeas petition is deemed filed on the date he gives it to prison officials for delivery to the Court, see Pl \oble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 534 U.S. 886. Therefore, although the Petition was stamped “FILED” in the Northern District of New York on November 20, 2015, this Court will consider it to have been filed as of November 9, 2015, the date it was signed by Petitioner. See, e.g., Young v. Great Meadow Corr. Facility Superintendent, No. 16cv1420 (PAE) (BCM), 2017 WL 480608, at *2 □□□□□□□□□ Jan. 10, 2017) (citing Pl Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) ). 5 According to Respondent, “[m]embers of the Appellate Division's clerk's office were unable to determine why the appeal was never perfected, because the assigned counsel, Thomas P. Burke, Esq., was disbarred a number of years ago, and is now deceased.” (2/17/17 Fleischmann Ltr., at 1.) 6 Although Respondent's August 1, 2017 letter stated that Petitioner was being represented “on his appeal” by an attorney with the Center for Appellate Litigation, and that this attorney has “not yet perfected [Petitioner's] appeal” (id.), it is this Court understanding from the Appellate Division's February 16, 2017 Order that Petitioner had been assigned counsel for the purpose of prosecuting Petitioner's reinstated coram nobis motion, not an appeal (see SR-106-07 (Appellate Division's Order, quoted above); see a/so Fleischmann Decl. J 22 (stating that counsel “nas been assigned to represent [P]etitioner on the coram nobis motion’) ). 7 As Respondent notes, “Petitioner's trial counsel, Christopher South, is still practicing in New York ... [and] may well be able to speak to these claims.” (Resp. Mem., at 8; see a/so Fleischmann Decl. { 23.) 8 In light of Pace, four federal appeals courts to consider the matter have concluded that a district court has discretion to stay wholly unexhausted petitions, provided the petitioner can show, consistent with Rhines, good cause for failure to exhaust, potential merit, and a lack of intentionally dilatory tactics. See P8ivena V. Long, 813 F.3d 907, 910-11 (9th Cir. 2016); P2poe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014): □□□□□□□□ v. Brooks, 581 F.3d 187, 192 (3rd Cir. 2009); ®boiis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).

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