Omarrio Morrison v. Michael Capra

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK OMARRIO MORRISON, Petitioner, ORDER -against- 23 Civ. 2598 (VB) (AEK) MICHAEL CAPRA, Respondent.

THE HONORABLE ANDREW E. KRAUSE, U.S.M.J. On April 28, 2023, Petitioner filed a motion requesting that this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254 be held in abeyance so that he could fully litigate claims of ineffective assistance of counsel, Brady violations, and prosecutorial misconduct via a New York Criminal Procedure Law (“CPL”) Section 440.10 motion in state court. ECF No. 9. At the time of that filing, the Section 440.10 motion had been denied by the County Court, and an application for a certificate of appeal was pending before the Appellate Division, Second Department. The submission to this Court requested that “should an unfavorable outcome result from the [Section 440.10] motion, Petitioner be allowed to amend the original Petition that is before this Court.” ECF No. 9 at 2. Because the motion did not provide the Court with sufficient information to determine whether a stay should be granted, the Court denied the motion without prejudice to Petitioner filing a new motion for a stay that would “describe the unexhausted claims with specificity” and “explain why [Petitioner] believes the unexhausted claims have merit and how he exercised diligence in raising those claims in New York State courts.” ECF No. 11. In response to the Court’s order, Petitioner filed a new motion for a stay. ECF No. 12. Shortly after the new motion for a stay was filed, submissions from Respondent and Petitioner reported that the Appellate Division denied Petitioner’s request for a certificate granting leave to appeal on June 9, 2023. See ECF Nos. 13, 14. Accordingly, on July 5, 2023, the Court denied as moot Petitioner’s motion to stay this habeas proceeding, because the previously unexhausted claims for ineffective assistance of

counsel, Brady violations, and prosecutorial misconduct had now been fully exhausted in the state courts. ECF No. 15. The Court set deadlines for Respondent to file and serve his response to the habeas petition and for Petitioner to serve and file his reply. Id. Respondent thereafter served and filed his opposition papers, ECF Nos. 21-23, responding solely to the claims set forth in the original petition, ECF No. 1 (“Petition”),1 and Petitioner served and filed his traverse in response, ECF No. 24. Respondent was not wrong when he pointed out in his response to Petitioner’s second motion for a stay that in that motion, Petitioner “sought no other relief beyond the application for a stay of the proceedings.” ECF No. 13. “The Court is obliged, however, to construe pro se pleadings liberally and interpret them to raise the strongest arguments they suggest.” Sloane v.

Daye, No. 25-cv-7479 (LLS), 2025 WL 3282437, at *1 (S.D.N.Y. Nov. 25, 2025) (emphasis and quotation marks omitted). Taking Petitioner’s two stay motions together, the most logical inference is that Petitioner filed the new motion for a stay, and informed the Court that he had

1 Respondent’s memorandum of law addressed an ineffective assistance of counsel claim based on the failure to call an expert witness that Respondent stated was “raised for the first time” in Petitioner’s second Section 440.10 motion, see ECF No. 22 at 21, but Respondent also acknowledged that that claim was already included in the original Petition, see id. at 14. Indeed, it was listed among the “supporting facts” for Petitioner’s ineffective assistance of counsel claim, which was asserted as “Ground One” for habeas relief. See Petition at 3 (“counsel consulted with but failed to retain DNA expert witness to testify in [Petitioner’s] defense”). Respondent did not otherwise address the other claims raised in the second Section 440.10 motion—namely, the claims for Brady violations and prosecutorial misconduct—which were not included in the Petition. fully exhausted the claims raised in his Section 440.10, see ECF No. 14, because he still wanted to amend the Petition (as indicated in the original stay motion) so that this Court could consider those claims. Of course, Petitioner is not required to file a motion to amend—he may instead choose to proceed exclusively on the claims in the Petition, in which case, no further filings are

required for the Court to adjudicate this matter. If, however, Petitioner does wish to file a motion to amend—which would be necessary to enable this Court to potentially consider as part of this habeas proceeding any claims raised for the first time in the second Section 440.10 motion (other than an ineffective assistance of counsel claim based on the failure to call an expert witness, see footnote 1)—then the Court orders the following briefing schedule: (1) Petitioner’s motion to amend (if any) must be served and filed by no later than May 7, 2026. This filing must also include Petitioner’s arguments regarding the merits of the proposed new claims, so that if the motion to amend is granted, the Court will be able to address all active claims based on these additional submissions;

(2) Respondent’s opposition to the motion to amend must be served and filed by no later than July 7, 2026. This filing likewise must also include Respondent’s arguments regarding the merits of the proposed new claims, in case the motion to amend is granted; and

(3) Petitioner’s reply papers in support of both the motion to amend and the merits of his proposed new claims must be served and filed by no later than August 6, 2026. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se Petitioner. Dated: April 6, 2026 White Plains, New York SO ORDERED.

ANDREW E. KRAUSE United States Magistrate Judge

2025 WL 3282437 (emphasis in original); see Green v. United States, 260 F.3d Only the Westlaw citation is currently available. 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not United States District Court, S.D. New York. exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Derek SLOANE, Petitioner, Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). v. Superintendent Michael DAYE, Respondent. BACKGROUND 25-CV-7479 (LLS) Petitioner Derek Sloan brings this petition for a writ of habeas Signed November 20, 2025 corpus under 28 U.S.C. § 2254, challenging his February 15, 2022 conviction in the County Court, Putnam County, Filed November 25, 2025 in which a jury convicted him of grand larceny in the third degree and criminal possession of stolen property in the third Attorneys and Law Firms degree. By order dated May 14, 2025, the New York State Derek Sloane, Beacon, NY, Pro Se. Supreme Court, Appellate Division, Second Department, affirmed Petitioner's conviction. See People v. Sloane, 238 A.D.3d 899 (2d Dep't May 14, 2025), leave to appeal denied, 43 N.Y.3d 1058 (July 10, 2025). Petitioner has not filed any ORDER TO AMEND postconviction motions in the state courts. LOUIS L. STANTON, United States District Judge: In his Section 2254 petition, Petitioner asserts four grounds *1 Petitioner, who is currently incarcerated at Fishkill for relief: (1) trial counsel provided ineffective assistance Correctional Facility, brings this pro se petition for a writ when he denied Petitioner's request to call certain witnesses; of habeas corpus under 28 U.S.C. § 2254, challenging his (2) Petitioner was denied a jury of his peers because the February 15, 2022 conviction in the County Court, Putnam only Black juror on the panel was removed; (3) Petitioner County. By order dated November 3, 2025, the court granted “was found guilty less than a half hour by the only white Petitioner's request to proceed in forma pauperis. The Court jurors” (ECF 1, at 8); and (4) trial counsel was ineffective directs Petitioner to file an amended petition within 60 days for failing to obtain video footage that Petitioner believes of the date of this order as detailed below. would have assisted his defense. Although Petitioner alleges throughout the petition that his appellate counsel refused to raise his preferred issues on appeal, he does not raise ineffectiveness of appellate counsel as a separate ground for STANDARD OF REVIEW relief. The Court may entertain a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation DISCUSSION of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § *2 A state prisoner must exhaust all available state remedies 2254 Cases, the Court has the authority to review and dismiss before filing a petition for a writ of habeas corpus under a § 2254 petition without ordering a responsive pleading from Section 2254. 28 U.S.C. § 2254(b); see Rose v. Lundy, the state, “[i]f it plainly appears from the petition and any 455 U.S. 509, 510 (1982). This exhaustion doctrine means attached exhibits that the petitioner is not entitled to relief in that the state courts must be given the first opportunity to the district court.” Rules Governing § 2254 Cases, Rule 4; see review constitutional errors associated with a petitioner's Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000). The Court confinement. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 is obliged, however, to construe pro se pleadings liberally and (1999). A petitioner may satisfy the exhaustion requirement interpret them “to raise the strongest arguments they suggest.” by fairly presenting his claims through a state's established both the factual and legal premises of the claim he asserts in assistance of trial counsel, which often do not have to be federal court.’ ” Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) raised on direct appeal, he does not allege that he exhausted (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d any such claims by raising them in a postconviction motion Cir. 1982)). An exception to the exhaustion requirement exists under New York Criminal Procedure Law Section 440.10 only when: “(1) [the petition] establishes cause for his failure and seeking leave to appeal any adverse decision. See Rios to exhaust and prejudice as a result of the alleged violation v. Miller, No. 17-CV-2256 (ALC), 2020 WL 4003607, at of federal law ... or (2) he demonstrates that the failure to *2 (S.D.N.Y. July 15, 2020) (“[T]o properly exhaust an consider his claims will result in a fundamental miscarriage ineffective assistance of counsel claim that relies on evidence of justice.” Robinson v. Sposato, No. 11-CV-0191, 2012 WL outside the pretrial and trial record, [the] petitioner must raise 1965631, at *2 (E.D.N.Y. May 29, 2012) (citing Coleman v. [the claim] as part of a motion to vacate judgment under [New Thompson, 501 U.S. 722, 750 (1991)). York Criminal Procedure Law] § 440.10 and then seek leave to appeal to the Appellate Division.”).1 While ineffective In order to exhaust any issues for purpose of habeas corpus assistance of counsel can constitute cause for a procedural review, a petitioner must appeal his judgment of conviction to default, the exhaustion requirement nevertheless “generally the New York State Supreme Court, Appellate Division. N.Y. requires that a claim of ineffective assistance be presented Crim. P. L. § 460.70. Should that court's decision adversely to the state courts as an independent claim before it may be affect the petitioner, he should then seek leave to appeal to used to establish cause for a procedural default.” Murray v. the New York Court of Appeals, the highest state court. Id. at Carrier, 477 U.S. 478, 489 (1986). § 460.20; see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should a petitioner raise for habeas corpus relief any 1 Any ineffective assistance of counsel claims that grounds raised in New York Criminal Procedure Law Section are based on the record must also be raised in 440.10 motions and/or other collateral motions, he must a Section 440.10 motion on collateral review. show that those grounds have been completely exhausted by See id. (“When presented with an ineffective seeking leave to appeal to the New York State Supreme Court, assistance of counsel claim containing both matters Appellate Division. Ramos v. Walker, 88 F. Supp. 2d 233 amendable to resolution based on the record and (S.D.N.Y. 2000). matters that are not, courts have required that all claims be reviewed collaterally so that counsel's Here, it appears that Petitioner has not exhausted any of representation can be evaluated as a single cause of his grounds for relief. He asserts that he exhausted his action.”). claims by raising them on appeal, but, according to the Appellate Division's decision denying his appeal, he did not *3 There is no statutory time limit on filing a motion under raise on direct appeal any of the claims presented here. Section 440.10. See N.Y. Crim. Pro. Law § 440.10(1). Thus, According to the Appellate Division's decision, Petitioner as long as Petitioner may use an available state court remedy raised the following claims on appeal: (1) he was convicted by filing a Section 440.10 motion, his claims of ineffective against the weight of the evidence; (2) the prosecutor made assistance of counsel are unexhausted. See O'Neal v. New improper comments during summation; (3) the trial court York, 465 F. Supp. 3d 206, 215-16 (E.D.N.Y. 2020) (finding erred in permitting the prosecution to present evidence petitioner's non-record based claims of ineffective assistance of a key found on Petitioner following his arrest; (4) of counsel unexhausted, but not procedurally barred, because the trial court made an improper ruling under People v. a state remedy was still available under Section 440.10). Sandoval, 34 N.Y.2d 371 (1974), relating to Petitioner's prior criminal acts; and (5) the trial court erred in declining to The Court grants Petitioner 60 days’ leave to file an amended examine Petitioner's competency. See Sloane, 238 A.D.3d Section 2254 petition in which he alleges that he has 899. The Appellate Division also rejected other non-specified exhausted each of his claims for relief as discussed above. “remaining contentions” as “without merit.” Id. at 902. The only grounds that have been exhausted for habeas corpus review are those grounds raised in Petitioner's direct appeal, LEAVE TO AMEND PETITION none of which he asserts in this petition. 2029 WL 3282437 The Court grants Petitioner leave to submit an amended Petiion for Relief From a Conviction oF Sentence petition within 60 days of the date of this order. Should oltion Vier 28 US.C. $2284 wr a Wve a Habeas Corpun Petitioner decide to file an amended petition, he must state his grounds for relief and detail the steps he has taken Oy... issn so mmsbownenwnwho' — sone unr judemnen sins □□□ □□ we exhaust them fully in the New York courts. Petitioner must en nn eee exhaust all available state court remedies in order to proceed sour “ iin hema he st : | ha =a ac mt ye va oct oe ee adn with this Petition, ! See 28 U.S.C. § 2254(b)(1). Petitioner vara asinnvnsanay in is advised that an amended petition completely replaces the □ Yorn» ansizn he fm, yoni 9 hs stint of ml Ht so ay original petition. Amer pein onda Soir ee ee l The Antiterrorism and Effective Death Penalty rset ey he ion we yi si ge a Act of 1996 requires that a federal habeas corpus 7. Inthispetiion you may eg te jem ner Tet Ween oe petition must be filed within one year of the latest & When you have completed the fom, send the original and pies tothe Clerk ofthe United States District of four dates specified. See 28 U.S.C. § 2244(d)(1); — Civ Und Sates bis Car see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996). City State 7p Code

Petitioner is directed to file an amended petition containing PETITION UNDER 28 USC. §2254POR WRITOF the information specified above. The amended petition must = [_—stiniteatsttes visto SS™S~S~S—CS be submitted to the Clerk's Office within 60 days of the date | “— of this order, be captioned as an “Amended Petition” and csc sd mt bear the same docket number as this order. An Amended ee eer Petition Under 28 U.S.C. § 2254 form is attached to this order, which Petitioner should complete as specified above. Tr aT Petitioner should state all his grounds for federal habeas corpus relief and set forth facts supporting each specified “mes ground for relief. Once submitted, the amended petition shall (a) Name and location of court that enteral the jadgment of conviction yom are chalengin be reviewed for substantive sufficiency, and then, if proper, oe eee the case will be reassigned to a district judge in accordance (b} Date of sentencing with the procedures of the Clerk's Office. If Petitioner fails to eee unica camctueetaewint □□ comply with this order within the time allowed, and cannot $n ail eras ofc yom west ered end stnced nie am show good cause to excuse such failure, the petition will be i 1 (3) Nolecantendere (no contest denied without prejudice as unexhausted. a Gas 7 man

SO ORDERED.

Attachment