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Pesina v. Johnson

United States Court of Appeals, Second Circuit
Sep 14, 1990
913 F.2d 53 (2d Cir. 1990)

Summary

holding that in order to properly exhaust claims raised in an unsuccessful § 440.10 motion, a habeas petitioner must seek leave to appeal the denial of the motion to the Appellate Division

Summary of this case from Sturdivant v. Barkley

Opinion

No. 164, Docket 90-2151.

Submitted September 14, 1990.

Decided September 14, 1990.

R. Nils Olsen, Jr., Buffalo, N.Y., for petitioner-appellant.

Peter H. Schiff, Deputy Sol. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen. of the State of New York, Nancy A. Spiegel, Martin A. Hotvet, Asst. Attys. Gen., Albany, N.Y., of counsel), for respondent-appellee.

Appeal from the United States District Court for the Western District of New York.

Before KAUFMAN, WINTER and MINER, Circuit Judges.


Ramiro Pesina appeals from Judge Curtin's dismissal of his petition for a writ of habeas corpus for failure to exhaust state remedies. One of the federal claims underlying Pesina's petition was raised for the first time and denied in a state collateral action. We affirm because Pesina failed to seek leave to appeal from this denial to the state appellate courts.

Pesina pleaded guilty in County Court to first degree manslaughter, New York Penal Law § 125.20, and was sentenced to a term of imprisonment of five to fifteen years. Pesina appealed his conviction to the New York Supreme Court Appellate Division claiming that his sentence was unlawfully severe. The Appellate Division affirmed, and leave to appeal to the New York Court of Appeals was denied.

Pesina next sought collateral relief in state court. He filed a pro se motion in Niagara County Court to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 on the grounds that his sentence was excessive and that he was denied effective assistance of counsel. The County Judge denied the motion. Pesina did not seek leave to appeal to the Appellate Division as authorized by N.Y.Crim. P.L. § 450.15.

Pesina then brought the instant action, again claiming cruel and unusual punishment and denial of effective assistance of counsel. The cruel and unusual punishment claim is conceded to have been exhausted. The district judge held, however, that the ineffective assistance claim had not been exhausted because Pesina did not appeal from the denial of his Section 440.10 motion. Finding therefore that Pesina's petition contained both exhausted and unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the court dismissed the petition in its entirety, see Pesina v. New York, No. CIV-87-1464C, slip op. at 4 (W.D.N.Y. Nov. 16, 1989). The district court thereafter granted Pesina a certificate of probable cause and permission to appeal.

The statute authorizing the issuance of writs of habeas corpus, 28 U.S.C. § 2254, states in part that "[a]n application for a writ . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." Id. at § 2254(b). We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition. See, e.g., Daye v. Attorney General of New York, 696 F.2d 186, 190 n. 3 (2d Cir. 1982) (en banc). Pesina, by failing to appeal the denial of his Section 440.10 motion, has not fulfilled this requirement with respect to his ineffective assistance claim.

Pesina argues that because the statutory time limit for such an appeal has passed, see N.Y.Crim.P.L. § 460.10(4)(a), he has exhausted his claim. We disagree. While that statutory limit may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 action. Until Pesina presents his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures. See 28 U.S.C. § 2254(c).

Accordingly, the judgment of the district court is affirmed.


Summaries of

Pesina v. Johnson

United States Court of Appeals, Second Circuit
Sep 14, 1990
913 F.2d 53 (2d Cir. 1990)

holding that in order to properly exhaust claims raised in an unsuccessful § 440.10 motion, a habeas petitioner must seek leave to appeal the denial of the motion to the Appellate Division

Summary of this case from Sturdivant v. Barkley

holding that the Court had no authority to declare as a matter of state law that the petitioner cannot raise his claim in a new section 440.10 motion

Summary of this case from Carpenter v. Reynolds

holding that unexhausted claim must be presented to state court notwithstanding likelihood of procedural bar under state law, since federal courts "have no authority to declare as a matter of state law that an appeal from the denial of [state court motion for collateral relief] is unavailable"

Summary of this case from Rowe v. People of the State of New York

holding that petitioner who did not seek leave to appeal to the New York Court of Appeals had not exhausted his state remedies with respect to the claim at issue

Summary of this case from Bordas v. Walker

finding a petition unexhausted where petitioner had failed to appeal the denial of a motion under N.Y. Crim. Proc. L. § 440.10 even though the statutory time limit to appeal the denial had passed

Summary of this case from Letlow v. Sabourin

affirming a decision of the district court that claim was unexhausted because petitioner did not appeal the denial of his § 440.10 motion

Summary of this case from Warren v. Goord

In Pesina, the Second Circuit rejected the argument that because the statutory time limit for seeking leave to appeal the denial of a C.P.L. § 440.10 motion had passed, the petitioner had in fact exhausted the claims in that motion.

Summary of this case from Capps v. Kaplan

In Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990) (per curiam), the Court of Appeals held that where a habeas petition under § 2254 is filed following the denial of a motion under New York Criminal Practice Law Section 440, and no attempt to appeal that denial was made by the petitioner, the claims presented cannot be considered exhausted (and subject to the procedural default doctrine) because a federal court "ha[s] no authority to declare as a matter of state law that an appeal... is unavailable."Id. at 54.

Summary of this case from Sams v. Donelli

In Pesina, the Second Circuit held that where a petitioner fails to appeal a decision on a 440.10 motion, a federal court must hold that the petitioner's claims are unexhausted.

Summary of this case from Ayala v. Conway

stating that "the exhaustion requirement mandates that federal claims be presented to the Highest court of the pertinent state before a federal court may consider the petition"

Summary of this case from Velazquez v. Poole

In Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990) (per curiam), the petitioner filed a 440.10 motion but did not seek leave to appeal its denial to the Appellate Division.

Summary of this case from Castillo v. Hodges

stating that "the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition"

Summary of this case from Carr v. Fischer

In Pesina, the Second Circuit held that although the statutory time limit for a petitioner to appeal the denial of a motion brought pursuant to CPL § 440.10 had passed, the petitioner "must still present that claim to the highest state court."

Summary of this case from Carpenter v. Reynolds

In Persina, the Second circuit declared that federal courts "have no authority to declare as a matter of state law that an appeal from the denial of (state court motion for collateral relief] is unavailable".Persina, 913 F.2d at 54.

Summary of this case from Speringo v. Mclaughlin

In Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990), exactly as in this case, Pesina had pled guilty to a state crime, and later sought state collateral relief under § 440.10, arguing for the first time that he was denied effective assistance of counsel in entering his plea.

Summary of this case from Bloomer v. Costello
Case details for

Pesina v. Johnson

Case Details

Full title:RAMIRO PESINA, PETITIONER-APPELLANT, v. SALLY B. JOHNSON, SUPERINTENDENT…

Court:United States Court of Appeals, Second Circuit

Date published: Sep 14, 1990

Citations

913 F.2d 53 (2d Cir. 1990)

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