Opinion
04 Civ. 4112 (SHS)(GWG).
September 28, 2005
REPORT AND RECOMMENDATION
I. BACKGROUND
A. Castillo's Conviction and Section 440 Motion
On November 20, 2002, Juan Castillo pled guilty to one count of Attempted Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law §§ 110, 220.16) in New York State Supreme Court, New York County. (P. 7). On December 13, 2002, he was sentenced to a term of six months' imprisonment followed by five years' probation. (S. 4). On February 21, 2003, he pled guilty to one count of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law § 220.39) in New York State Supreme Court, Queens County. See Memorandum of Law In Opposition to Petition for Writ of Habeas Corpus, filed Feb. 18, 2005 (Docket # 8) ("Opp. Mem."), at 4. On April 1, 2003 — that is, following the Queens conviction but prior to sentencing — Castillo's New York County sentence was vacated and he was re-sentenced to a prison term of one to three years. (RS. 5).
"P." refers to Docket # 11 (transcript of proceedings held November 20, 2002). "S." refers to Docket # 12 (transcript of proceedings held December 13, 2002). "RS." refers to Docket # 13 (transcript of proceedings held April 1, 2003).
Castillo never appealed his judgments of conviction. On November 28, 2003, however, he filed a pro se motion to vacate his New York County conviction pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10. See Notice of Motion to Vacate Judgment Pursuant to § 440.10 C.P.L. (annexed to Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, filed August 26, 2004 ("Am. Pet.") (Docket #2)). In his section 440 motion, Castillo raised the following grounds for relief: (1) his guilty plea should be withdrawn because the court did not properly advise him of the effect a guilty plea would have on his immigration status pursuant to C.P.L. § 220.50(7); (2) his counsel was ineffective for failing to advise him as to the "direct" consequences of the plea and for "affirmatively representing" to him that the guilty plea would not result in his deportation; (3) his counsel was ineffective for failing to consult with him, for not undertaking a proper investigation prior to advising him to plead guilty, for not filing pre-trial motions, and for failing to secure his attendance at proceedings; (4) both counsel and the court erred in failing to advise him of the "mandatory surcharge." See Affidavit in Support of Motion, dated November 28, 2003 (annexed to Am. Pet.); Memorandum of Law in Support, undated (annexed to Am. Pet.), at pages (a)-(h).
Justice Laura A. Ward subsequently issued a summary order denying Castillo's motion to vacate the judgment. See Order, dated December 26, 2003 (reproduced as Ex. C to Declaration in Opposition to Petition for Writ of Habeas Corpus, filed February 18, 2005 (Docket #9)). Although this order indicated that "[a] written decision will follow," see id., no such decision appears in the record. Castillo did not appeal Justice Ward's decision denying this motion. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, filed February 13, 2004 ("Petition") (Docket #1), at 3-4.
B. The Instant Petition
Castillo filed his petition in the instant matter on February 13, 2004, and filed an amended petition on August 26, 2004. See Petition; Amended Petition. In his amended petition, Castillo has raised the following grounds for relief: (1) "the court failed to follow procedures" required by C.P.L. §§ 220.50, 220.60 by failing to advise him of the effect that his plea of guilty would have on his immigration status; (2) counsel was ineffective for failing to file a notice of appeal on his behalf following the guilty plea; (3) counsel was ineffective for failing to file "any pre-trial motion" on his behalf; and (4) the Clerk of the New York State Supreme Court denied receipt of a motion to vacate judgment. See Am. Pet. ¶ 13.
C. The Court's Stay Order and Subsequent Orders
By Order dated April 19, 2005, the Court noted that none of the claims in Castillo's petition were exhausted with the exception of any record-based claims (such as counsel's alleged failure to file a pre-trial motion on his behalf). While the latter claims were procedurally barred because Castillo never filed a direct appeal of his conviction, the Court noted that they would be "deemed exhausted." See Order, dated April 19, 2005 (Docket # 14). Thus Castillo's petition presented both exhausted and unexhausted claims — commonly referred to as a "mixed petition." Following the procedure outlined in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001), and upheld by the Supreme Court in Rhines v. Weber, 125 S. Ct. 1528 (2005), the April 19 Order stayed this case on the condition that Castillo make the necessary applications in the New York State courts to exhaust his claims by June 6, 2005. The Order specifically directed Castillo to seek leave to appeal the denial of his 2003 section 440 motion and to file a new section 440 motion for any claims being raised for the first time in his habeas petition. It further directed Castillo to provide a letter or affidavit to this Court stating that he had made these filings.
When no such letter or affidavit had been received as of June 6, 2005, a clerk to the undersigned contacted respondent's counsel, then Ms. Danielle Attias, who indicated that she too was unaware that any of the necessary filings had been made in the New York courts. Accordingly, the Court issued another order noting that the effect of petitioner's failure was that this petition had to be dismissed. See Order, dated June 22, 2005. It gave Castillo the opportunity, however, to abandon any unexhausted claims provided he did so by July 22, 2005.
That date came and went without word from Castillo. Accordingly, the Court issued another order directing Castillo and the respondent to inform the Court of any state court filings undertaken by Castillo. See Order, dated August 19, 2005. Castillo did not respond to this order either. Respondent's counsel sent a letter, dated August 31, 2005, indicating that Castillo had unsuccessfully sought permission to file a direct appeal of his conviction, but never appealed the denial of his 2003 section 440 motion and never filed a second section 440 motion. See Letter from Luke Martland to Hon. Gabriel W. Gorenstein, dated August 31, 2005 (to be docketed).
II. DISCUSSION
Castillo has neither exhausted his unexhausted claims nor sought to dismiss them. As a result, this petition for habeas corpus is a "mixed petition." The Supreme Court has adopted a rule of "total exhaustion" for habeas petitions and thus has held that district courts "must dismiss" mixed petitions. Rose v. Lundy, 455 U.S. 509, 510, 518-21 (1982); accord Pliler v. Ford, 124 S. Ct. 2441, 2445 (2004) ("[F]ederal district courts must dismiss mixed habeas petitions.") (citing Rose, 455 U.S. at 510, 522); see also Rhines v. Weber, 125 S. Ct. 1528, 1533, 1535 (2005) (noting that, although there are certain circumstances under which a district court may stay a habeas petition, statutory changes to the habeas statute "preservedLundy's total exhaustion requirement") (citation omitted).
Conclusion
Because Castillo's petition is a mixed petition and because he has not taken advantage of the stay afforded by the Court to cure this defect, his petition should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Sidney H. Stein, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Stein. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).