Summary
concluding that claim for ineffective assistance of counsel that had only been raised on direct appeal was not exhausted
Summary of this case from Rios v. MillerOpinion
00 Civ. 2383 (RWS).
March 1, 2001.
Viscount Bernard Washington Petitioner Pro Se # 95-A-4504 Sing Sing Correctional Facility Osining, NY.
ROBERT M. MORGENTHAU, New York County, New York, NY, Attorney for Respondent, MORRIE I. KLEINBART, Assistant District Attorney.
OPINION
Pro se petitioner Viscount Bernard Washington ("Washington") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Superintendent Greiger ("Greiger") opposes the petition. For the reasons set forth below, the petition is dismissed without prejudice.
The Parties Washington is an inmate in state custody at Sing Sing Correctional Facility ("Sing Sing").
Greiger is the Superintendent of Sing Sing.
Prior Proceedings And Facts
A jury convicted Washington of attempted murder in the second degree, rape in the first degree, and assault in the first degree in the New York County Supreme Court on May 26, 1995. On June 13, 1995, a judgment of conviction was entered and Washington was sentenced to consecutive prison terms of from 8 1/3 to 25 years on the attempted murder and rape charges, to run concurrently with a prison term of from 5 to 15 years on the assault charge, to be served in the custody of the New York State Department of Correctional Services.
The judgment of conviction was affirmed by the New York Appellate Division, First Department (the "Appellate Division"), on May 14, 1998. See People v. Washington, 250 A.D.2d 445 (N.Y.App.Div. 199 8). In his direct appeal Washington raised two issues: (1) that his motion to suppress certain physical evidence at trial was denied improperly, and (2) that he did not receive effective assistance of counsel at trial. With respect to the ineffective assistance of counsel claim, the decision of the Appellate Division states: "On the existing record, which defendant has not sought to amplify by way of a CPL 440.10 motion, we conclude that defendant received effective assistance of counsel." Washington, 250 A.D.2d at 445 (internal citation omitted).
Leave to appeal from the decision of the Appellate Division to the New York Court of Appeals was denied on August 12, 1998. See People v. Washington, 680 N.Y.S.2d 72 (N.Y. 1998).
On or about May 25, 1999, Washington filed a pro se motion in the Appellate Division seeking a writ of error coram nobis on the ground that he had been denied the effective assistance of appellate counsel. Specifically, Washington faulted his appellate attorney for failing to bring a motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10. On or about December 28, 1999, the Appellate Division denied the application for a writ of error coram nobis. Washington subsequently applied for permission to appeal this decision to the Court of Appeals. On or about January 21, 2000, the application was dismissed on the ground that the order sought to be appealed is not appealable, pursuant to New York Criminal Procedure Law § 450.90(1).
On or about February 25, 2000, Washington filed the instant petition for a writ of habeas corpus in this Court. The grounds asserted in the petition are ineffective assistance of counsel. The petition recites as supporting facts that Washington's trial attorney "did virtually no investigation," declined to call witnesses even though there were persons who could have been called, and failed to offer expert testimony to support an intoxication defense.
Washington dated the petition February 24, 2000, and the file stamp on the first page indicates that it was received by the Pro Se Office of the Southern District of New York on March 6, 2000. 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).
On May 31, 2000, Greiner filed his opposition to the petition, at which time the matter was marked fully submitted.
Discussion I. The Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254 A. Standard for Reviewing State Court Judgments
Section 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1), (2); see Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
B. Exhaustion Requirement
In addition, before a federal court may address the merits of a § 2254 claim, state prisoners must "exhaust" their claims by pursuing them in the state court system until no further avenue of relief is available there. 28 U.S.C. § 2254(b), (c); see Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992) (reaffirming that state prisoner must exhaust state remedies before writ of habeas corpus may be granted by federal court); Rose v. Lundy, 455 U.S. 509 (1982).
The exhaustion requirement gives states the first opportunity to pass upon convictions rendered in their courts, and is based upon the principle of "comity," or respect for states. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Duckworth v. Serrano, 454 U.S. 1 (1981); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994).
In order to exhaust claims, petitioners must "fairly present" their constitutional claims to the highest state court. See Picard v. Connor, 404 U.S. 270, 275 (1971); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). A petitioner may "fairly present" his federal constitutional claim by, for example, "mak[ing] an explicit constitutional argument," "relying on federal and state cases that employ a constitutional analysis," "asserting the claim in terms that `call to mind a specific right protected by the Constitution,'" or "alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine, 44 F.3d at 124 (quoting Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)); see N.Y. Court of Appeals Rule 500.10(a) (McKinney 1999) (requiring that criminal leave applications "identify the issues on which the application is based.").
II. The Petition Will Be Dismissed Without Prejudice For Lack Of Exhaustion A. Washington Has Not Exhausted His Claim Of Ineffective Assistance Of Trial CounselGreiger raises two arguments in opposition to Washington's claim of ineffective assistance of trial counsel. First, Greiger contends that Washington has failed to exhaust this claim and, therefore, that the petition must be dismissed in accordance with the rule articulated in Rose, which held that a district court must dismiss a habeas petition containing both unexhausted and exhausted claims. 455 U.S. at 519-20. Second, Greiger contends that the claim is non-meritorious.
Even if Washington's claim is unexhausted, the government's contention that Rose requires dismissal of the petition is misplaced, as this rule was superseded by the passage of the AEDPA. See Pub.L. No. 104-132 § 104, 110 Stat. 1214, 1218 (1996), codified at 28 U.S.C. § 2254(b). Under AEDPA, a district court may deny an unexhausted claim on the merits notwithstanding a petitioner's failure to exhaust state remedies as to that claim. See 28 U.S.C. § 2254(b)(2); see also, e.g., Loving v. O'Keefe, 960 F. Supp. 46, 49 (S.D.N.Y. 1997). However, the court has discretion in this regard. See, e.g., Oppenheimer v. Kelly, No. 97 Civ. 3035, 1999 WL 435159, at *3 n. 1 (S.D.N.Y. June 24, 1999) (internal citations omitted) (district court may in its discretion dismiss petition for lack of exhaustion, or deny unexhausted claims on merits).
Greiger contends that Washington has not exhausted his claim of ineffective assistance of trial counsel because this claim was asserted on Washington's direct appeal, rather than through a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10. See N.Y. Crim. Proc. L. § 440.10 (McKinney 1994).
In New York, a claim that trial counsel was ineffective may be raised on direct appeal only if all of the factual information necessary to determine the claim appears in the trial record. See People v. Brown, 410 N.Y.S.2d 287, 287 (N.Y. 1978). Since the trial record does not normally contain the requisite information, such a claim must ordinarily be raised by way of a Section 440.10 motion, which involves a collateral or post-conviction proceeding permitting further evidentiary development. See id.
In response to Washington's ineffective assistance of counsel claim raised on direct appeal, the People argued before the Appellate Division both that the claim was without merit and that it should be dismissed on procedural grounds because it was not raised by way of a Section 440.10 motion. After noting the failure to make a Section 440.10 motion, the Appellate Division stated that "[o]n the existing record," Washington had "received effective assistance of counsel." Washington, 250 A.D.2d at 445.
At first glance, the language of the Appellate Division decision might lead to the conclusion that the court ruled on the merits of Washington's ineffective assistance of trial counsel claim, which could raise questions as to whether that claim had been exhausted. See N.Y. Crim. Proc. L. § 440.10(2)(a) (McKinney 1994) ("Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when . . . [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment. . . ."). However, the decision does not reflect that a Section 440.10 motion is now unavailable to Washington. Nor, indeed, does Greiger make that argument. Moreover, under New York law, a defendant may move at any time to vacate his conviction on grounds of a federal constitutional violation where the factual basis of the claim does not appear from the record. See N.Y. Crim. Proc. L. § 440.10 (McKinney 1994); Ehringer v. Miller, 928 F. Supp. 291, 295 n. 5 (S.D.N.Y. 1996). Finally, another district court within this circuit recently confronted almost identical circumstances and language employed by the Appellate Division, and concluded that the petitioner's ineffective assistance of counsel claim had not been exhausted. See Hanson v. Albaugh, No. 99 Civ. 9733, 2000 WL 426420, at *2 (S.D.N.Y. April 20, 2000) (ineffective assistance of counsel claim not exhausted where Appellate Division affirmance of defendant's conviction "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.'") (quoting state court decision). Therefore, Washington's claim for ineffective assistance of trial counsel has not been exhausted.
In the related, albeit analytically distinct, context of determining whether federal review of a claim is barred by state procedural law, the rule is that where the state appellate court has reached the merits of the claim then it is not procedurally barred — even if the state court could have denied the claim on procedural grounds. See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809-11 (2d Cir. 2000). Depending on the language used by a state appellate court, it can be difficult to determine whether that court has made a substantive or a procedural decision. See id. at 809-11 (internal citation omitted).
Thus, a state court denial of an ineffective assistance of counsel claim on direct review on the grounds that the motion should be brought under Section 440.10 would not mean that the claim was procedurally barred but, rather, would mean that the petitioner must use the proper procedural vehicle.
Although this Court has discretion to deny Washington's claim on the merits — assuming arguendo it is non-meritorious — despite the lack of exhaustion, such a course of action is unwarranted under the circumstances. See Hanson, 2000 WL 426420, at *2 (declining to exercise discretion to deny unexhausted ineffective assistance of counsel claim, and dismissing habeas petition without prejudice); Rivera v. New York State Parole Div., No. 98 Civ. 7555, 1999 WL 246752, at *4 (S.D.N.Y. Apr. 1, 1999) (endorsing "total exhaustion rule," and holding that district court should decline to exercise power under AEDPA to deny habeas petition on merits where petitioner asserts a single claim that was not presented to state appellate courts); Oppenheimer, 1999 WL 435159, at *3 (declining to exercise discretion to deny ineffective assistance of counsel claim on merits where state procedural vehicle, i.e., Section 440.10 motion, was still available). Rather, the opportunity should be afforded for consideration by the state courts of Washington's claim based on a more fully developed factual record, pursuant to a Section 440.10 motion.
Therefore, the petition will be dismissed without prejudice for lack of exhaustion. The merits of Washington's claim of ineffective assistance of trial counsel need not be addressed until such time as Washington exhausts his state remedies and files a new petition asserting that claim.
However, if the merits were reached based on the current submissions, the likelihood is that the petition would be denied.
B. It Would Be Premature To Rule On Washington's Claim For Ineffective Assistance Of Appellate Counsel
Washington has attached certain documents to his petition that pertain to his application for a writ of error coram nobis which concerned the alleged ineffective assistance of his appellate counsel, and the ground for relief is phrased broadly as "denial of effective assistance of counselor [sic]." However, the supporting facts set forth by Washington pertain only to Washington's representation at trial.Thus, Washington's petition could be construed as raising a claim for ineffective assistance of appellate counsel, but is somewhat ambiguous in this regard. In any event, since the petition is being dismissed for lack of exhaustion, the merits of such a claim will not be addressed at this time. In addition, Washington is directed to be more specific with respect to such a claim if he intends to raise it in his new petition.
There is no exhaustion problem with respect to this claim. Washington pursued it in state court through his application for a writ of error coram nobis, and the government has not suggested that there is another procedural vehicle available to Washington in this regard.
The statute of limitations period is tolled, however, while post-conviction proceedings are pending in state court, see 28 U.S.C. § 2244(d)(2), as well as while a federal habeas petition is pending, see Walker v. Artuz, 208 F.3d 357, 360 (2d Cir. 2000) (discussing 28 U.S.C. § 2244(d)(2)). The Second Circuit has stated explicitly that dismissals of habeas petitions for lack of exhaustion "should not later be construed to produce the unintended effect of barring federal habeas review under the AEDPA statute of limitations provision." Id. at 361 (internal citation omitted).
Thus, the statute of limitations period for Washington's claim was tolled while his application for a writ of error coram nobis was pending before the New York courts, as well as since he filed the instant petition. Dismissal of the instant petition does not of itself bar future federal filing and, indeed, this dismissal is without prejudice to his right to file a new petition once he has exhausted his state court remedies. See Hanson, 2000 WL 426420, at *4 (dismissing petition for lack of exhaustion without prejudice); Ruine v. Senkowski, No. 00 Civ. 3798, 2000 WL 1430020, at *4 (S.D.N.Y. Oct. 16, 2000) ("[D]ismissal [for lack of exhaustion] . . . will not in itself bar future federal filings.").
However, it is noted that close to the entirety of the statute of limitations period appears to have expired already. Once Washington has exhausted his claim he must, of course, file a new petition within the time remaining on the limitations period if that petition is to be timely.
It would be premature to make factual findings with respect to how much of the limitations period has run, and any tolling thereof, at this juncture. However, it appears that some ten and a half months elapsed after Washington's conviction became final on August 12, 1998, and before he instituted state post-conviction state court proceedings through his application for a writ of error coram nobis on or about May 25, 1999. In addition, approximately another month appears to have elapsed between the time the Court of Appeals denied his request to appeal the denial of the writ of error coram nobis and the filing of the instant habeas petition. In addition, the Second Circuit has held that, where an initial petition is dismissed for non-exhaustion, a new petition filed after the statute of limitations has run cannot be deemed timely based on "relation back" to the initial filing, because "when the initial habeas petition [is] dismissed . . . there is no pleading to which to relate back." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). Thus, in order for a new petition to be timely, Washington will have to proceed with great expedition in filing his Section 440.10 motion, and in filing a new federal habeas petition once those state court proceedings have been completed.
The only exception to this rule is in the "rare case" where "extraordinary circumstances" warrant application of equitable tolling of the statute of limitations. See Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000).
Conclusion
Therefore, for the reasons set forth above, the habeas petition is dismissed without prejudice and with leave to refile within the statute of limitations period once state remedies have been exhausted.It is so ordered.