Opinion
99 Civ. 9733 (JGK).
April 20, 2000.
OPINION AND ORDER
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which the petitioner, Jeffrey Hanson, who appears pro se, challenges his November 25, 1996 state court conviction in the New York State Supreme Court, New York County, for Criminal Possession of a Weapon in the Third Degree. On appeal, the Appellate Division, First Department, affirmed the judgment of conviction. (See Decision and Order dated Dec. 8, 1998, attached as Exh. A to Affidavit of Stacy Robin Sabatini dated Dec. 21, 1999 ("Sabatini Aff.").) The New York State Court of Appeals denied the petitioner leave to appeal from that decision on March 30, 1999. (See, Certificate Denying Leave dated March 30, 1999, attached as Exh. B to Sabatini Aff.)
The petitioner raises three grounds which he argues entitle him to relief: (1) that he was denied the right to a suppression hearing when the trial court conducted a joint hearing and trial; (2) that his testimony at that hearing was used against him in violation of his Fifth Amendment right against self-incrimination; and (3) that he was denied the effective assistance of trial counsel. The petitioner now seeks to withdraw his petition so that he may exhaust his state court remedies. The respondent opposes the petitioner's application and urges the Court to decide the petition on the merits.
I.
A petitioner in a habeas corpus proceeding must exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254(b), (c); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). The exhaustion requirement requires the petitioner to have fairly presented in state court the claims which are raised in the habeas petition.See Picard v. O'Connor, 404 U.S. 270, 275-76 (1971); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). The petitioner must present to the state court both the factual and legal premises of the claims. See Daye, 696 F.2d at 191.
Before the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petition containing any unexhausted claims had to be dismissed in its entirety. See Rose v. Lundy, 455 U.S. 509, 514, 522 (1982); Rodriguez v. Hoke, 928 F.2d 534, 537-38 (2d Cir. 1991). A petitioner then had the option of either exhausting the unexhausted claims and coming back to the federal court or dropping the unexhausted claims and filing a new petition for habeas corpus. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Under the provisions of AEDPA, however, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Whether to consider and deny an unexhausted claim is within the Court's discretion. See Glover, 1999 WL 349936, at *6-7; Terrence v. Senkowski, No. 97 Civ. 3242, 1999 WL 301690, *5 n. 4 (S.D.N.Y. May 12, 1999); Rodriguez v. Miller, No. 96 Civ. 4723, 1997 WL 599388, *3 (S.D.N.Y. Sept. 29, 1997); Ojeda v. Artuz, No. 96 Civ. 5900, 1997 WL 283398, *3 n. 5 (S.D.N.Y. May 29, 1997).
The petition is dated August 8, 1999 and it was filed with the Pro Se Office of the Court on August 16, 1999. Petitions for habeas corpus are deemed filed as of the date they are given to prison authorities. See Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997). The petition is therefore governed by the provisions of AEDPA because it was filed after AEDPA's effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997); Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir. 1998);Glover v. Portuondo, No. 96 Civ. 7616, 1999 WL 349936, *1 n. 1 (S.D.N.Y. May 28, 1999).
In this case, the Court does not exercise its discretion to deny the petitioner's unexhausted claims. The respondent originally argued in its papers in opposition to the petition that the petition should be dismissed because the petitioner's claims were not exhausted. In response to that argument, the petitioner sought to withdraw his petition so that he could first exhaust his state court remedies. The petitioner may have a state court remedy available in which he could raise at least the ineffective assistance of counsel claim. When the Appellate Division, First Department, affirmed the judgment of conviction against the petitioner, the court noted that "[o]n the existing record, which defendant has not sought to expand by means of a CPL 440 motion in order to explore counsel's strategy . . ., we find that counsel pursued a strategy that was reasonable under the circumstances." (See Exh A. to Sabatini Aff.) And in opposition to this petition, the respondent faults the petitioner for not having pursued a motion to vacate his conviction pursuant to CPL § 440.10 and thereby provide his trial counsel an opportunity to explain his trial strategy. The respondent does not argue that such a motion is now unavailable. It would be unreasonable under these circumstances for the Court to exercise its discretion under AEDPA to decide the petitioner's claims on the merits before the petitioner has exhausted his state court remedies. Accordingly, the petitioner's application to withdraw his petition so that he may exhaust his state court remedies is granted.
II.
Under AEDPA, the general rule is that a prisoner in custody as a result of a state-court conviction has one year after the date the conviction becomes final in which to file a habeas petition. See 28 U.S.C. § 2244(d)(1); see also Adeline v. Stinson, ___ F.3d ___, ___, 2000 WL 276015, * 2 (2d Cir. March 14, 2000). There is no dispute that this petition, which was filed less than five months after the Court of Appeals' decision denying the petitioner leave to appeal, is timely under AEDPA. AEDPA also contains a tolling provision under which the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward [the] period of limitation." 28 U.S.C. § 2244(d)(2). And the period during which a petition for habeas corpus is pending in federal court tolls the statute of limitations during its pendency when it is dismissed without prejudice for failure to exhaust state court remedies. See Walker v. Artuz, ___ F.3d ___ 2000 WL 309980, *4 (2d Cir. March 27, 2000). As other courts have recognized, however, dismissing a petition containing unexhausted claims without prejudice may lead to difficulties under AEDPA's limitations period when the petitioner seeks to file a new petition after exhausting his or her claims.See, e.g., Harmon v. People of the State of New York, No. 97 Civ. 2539, 1999 WL 458171, *4 (E.D.N.Y. June 25, 1999). Accordingly, it is appropriate in this case to dismiss the petition without prejudice to the petitioner's right to file an amended petition after he exhausts his state remedies so that the amended petition will relate back to the date of the original filing and not be time-barred. See id.
CONCLUSION
The petitioner's application to withdraw his petition for a writ of habeas corpus is granted. The petition is dismissed without prejudice to the petitioner's right to file an amended petition after he has exhausted his state court remedies. The petitioner has thirty (30) days to file a motion in state court to vacate his conviction pursuant to N.Y. Crim. Proc. L. § 440.10. If the petitioner thereafter seeks to resubmit his petition for a writ of habeas corpus to this Court, he must file an amended petition within thirty (30) days after the proper exhaustion of his state court motion. If the petitioner fails to comply with these time limitations, any resubmitted petition may be barred as untimely.
SO ORDERED.
DATED: New York, New York
April 2000