Musaid v. State of New York

• Court: District Court, S.D. New York
• Decided: February 25, 2021
• Docket: 1:19-cv-07944
• Status: Unknown

Opinion

DOCUMENT UNITED STATES DISTRICT COURT □□□ — eeneteneeeey | DATE FILED: 2/25/2021 MOHAMED MUSAID, : : 19-CV-7944 (AT) (RWL) Petitioner, : - against - ORDER MICHAEL KIRKPATRICK, Superintendent of Clinton Correctional Facility, : Respondent. ---------------------------------------------------------------X ROBERT W. LEHRBURGER, United States Magistrate Judge. In seeking leave to appeal to the Court of Appeals, Petitioner submitted a six-page letter detailing a single basis for the appeal: whether or not the Court sufficiently inquired regarding Petitioner's waiver of his right to assert an insanity defense. Claims may not be advanced in a habeas corpus petition unless they have been fully exhausted in state court proceedings. 28 U.S.C. § 2254(b). To exhaust, a Petitioner must make one complete round of appellate review, which, in New York, includes leave to appeal to the Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir. 2005). Where a petitioner specifically raises less than all issues in their request for leave to appeal, any issue not raised will be deemed unexhausted and procedurally defaulted. Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000). Moreover, a petitioner who has sought leave by calling out and discussing one issue in particular, cannot preserve an issue that is not specifically addressed by including a catchall request for the Court to address all issues. /d. Exhaustion of state remedies may not be overlooked by the Court, even if not raised by the Respondent. Jelinek v. Costello, 247 F. Supp. 2d 212, 263 (E.D.N.Y. 2003);

Ramos v. Keane, No. 98-CV-1604, 2000 WL 12142, at *3 (S.D.N.Y. Jan. 6, 2000). Accordingly, by March 29, 2021, Petitioner shall submit a letter brief of no more than five pages explaining why the issue of Petitioners competency to stand trial is not procedurally barred. By April 19, 2021, Respondent shall submit a responding letter brief of no more than five pages. By April 29, 2021, Petitioner shall submit a reply, if any, of no more than three pages.

ROBERT W.LEHRBURGER st” UNITED STATES MAGISTRATE JUDGE Dated: February 25, 2021 New York, New York Copies transmitted this date to all counsel of record.