Stanley v. Ercole
Filing
33
MEMORANDUM AND ORDER, For the foregoing reasons, the stay is lifted and Mr. Stanley's petition for a writ of habeas corpus pursuant to 28 USC sec. 2254 is dismissed in its entirety for petitioner's failure to prosecute and comply with the c ourt's orders pursuant to FRCP 41(b). The Clerk of the Court is respectfully requested to enter judgment in favor of respondent, close this case, serve a copy of this order on pro se petitioner at his address and note such mailing on the docket. (Ordered by Judge Kiyo A. Matsumoto on 6/23/2015) c/m Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
DONALD STANLEY,
MEMORANDUM & ORDER
Petitioner,
- against -
09-CV-4646 (KAM)
ROBERT E. ERCOLE,
Superintendent of Green Haven
Correctional Facility,
Respondent.
----------------------------------x
MATSUMOTO, United States District Judge:
Presently before the court is pro se petitioner Donald
Stanley's petition for a writ of habeas corpus pursuant to 28
u.s.c.
§
2254.
(See ECF No. 1, Petition ("Pet."); ECF No. 3,
Amended Petition ("Am. Pet."}.)
For the reasons set forth
below, the petition for a writ of habeas corpus is dismissed
pursuant to Federal Rule of Civil Procedure 41(b} for
petitioner's failure to comply with this court's orders and
prosecute this action.
BACKGROUND
On October 14, 2009,
1
petitioner, through his brother,
Jules Stanley, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and requested that his petition be
held in abeyance while he moved in state court to re-open a
1
The Pro Se Office received petitioner's amended petition on November 5,
2009.
(See generally Am. Pet.} The two petitions are identical except that
the Amended Petition is signed by petitioner, whereas the original petition
was signed only by petitioner's brother.
suppression hearing in his criminal case, at which he planned to
present newly-discovered, "material information."
Pet. at 14.)
(See Am.
The petition arises from petitioner's conviction,
after a jury trial in Supreme Court, Queens County, for Criminal
Possession of a Controlled Substance in the Third Degree, two
counts of Criminal Use of Drug Paraphernalia in the Second
Degree, and Criminal Possession of a Controlled Substance in the
Fifth Degree. 2
(ECF No. 6,
[Respondent's] Affidavit ("Opp.
Aff .") and Memorandum of Law in Opposition to Petition for a
Writ of Habeas Corpus ("Opp. Mero.") at 4; see also Pet at 16.)
On April 17, 2006, he was sentenced to twelve-and-one-half to
twenty-five years imprisonment on the third-degree criminal
possession charge, three and one-half to seven years on the
fifth-degree criminal possession charge, and one year on each of
the criminal use charges.
(Opp. Aff. at 4.)
Petitioner was in
custody pursuant to this judgment until June 20, 2012, as
discussed in greater detail below.
Petitioner timely appealed his conviction to the
Appellate Division, Second Department on the grounds that
(1) the drugs introduced at trial should have been suppressed
because they were recovered during an unlawful search of an
2
The jury acquitted petitioner of two counts of Murder in the Second Degree,
one count of Criminal Possession of a Weapon in the Second Degree, and two
counts of Criminal Possession of a Weapon in the Third Degree.
(Opp. Aff. at
3-4.)
2
apartment in which petitioner had a legitimate expectation of
privacy and (2) petitioner's sentence was excessive for the
crimes of which he was convicted, demonstrating that it was
improperly based on crimes of which petitioner was acquitted.
(See Opp. Aff. at 5.)
3
The Second Department affirmed
petitioner's conviction on March 17, 2008, see People v.
Stanley, 50 A.D.3d 1066 (N.Y. App. Div. 2d Dep't 2008),
concluding (1) that petitioner had failed to preserve his
arguments for appellate review,
(2) that petitioner did not have
an objectively reasonable expectation of privacy in the searched
apartment,
(3) that petitioner's argument that the sentencing
court improperly considered charges of which petitioner was
acquitted was meritless, and (4) that petitioner's sentence was
not excessive.
See generally id.
The New York Court of Appeals
denied petitioner's application for leave to appeal the Second
3
Petitioner was arrested following the fatal shooting of Guy Butera on
October 31, 2014 at a private home in Queens, New York.
(Opp. Aff. at 2.)
When police responded to the scene and searched the home, they found over 500
milligrams of cocaine and drug packaging paraphernalia in one of the
apartments.
(Id.)
The police arrested petitioner after witnesses told the
police that petitioner had been using the apartment to sell drugs after
illegally forcing out the lawful tenant, and that petitioner had shot the
victim during a dispute.
(Id. at 2-3.)
The building's landlord told the
police that petitioner did not have a lease and was not paying rent, and that
the landlord had corrunenced eviction proceedings.
(Id. at 3.)
Prior to
trial, petitioner moved the trial court to suppress the drugs found in the
apartment and property found on his person.
(Id.)
The Judicial Hearing
Officer to whom the suppression hearing had been referred found that
petitioner lacked standing to contest the search because he could have no
reasonable expectation of privacy in an apartment for which he paid no rent,
had no lease, and occupied illegally.
(Id. at 3-4.)
The trial court adopted
the findings of the Judicial Hearing Officer and denied petitioner's
suppression motion.
(Id. at 4.)
3
Department's decision on July 30, 2008.
10 N.Y.3d 964
See People v. Stanley,
(N.Y. 2008).
Petitioner filed the instant petition on October 14,
2009, alleging that the state court decision that he did not
have standing to contest the search of the apartment was
contrary to and an unreasonable application of clearlyestablished federal law.
(Pet. at 17; Am. Pet. at 17.)
He
claimed that he had since acquired documents from his eviction
proceeding "establishing that he was not a 'squatter'
trespassing on private property" at the time the apartment was
searched.
(Am. Pet. at 17.)
Petitioner further requested that
the court hold his petition in abeyance to allow him to move in
state court to re-open his suppression hearing in order to
present this new evidence.
(See id. at 19.)
On January 11, 2010, respondent filed his opposition
to Mr. Stanley's petition, arguing that the petition be denied
because the court is barred from reviewing the petition under
the Supreme Court's decision in Stone v. Powell, 428 U.S. 465
(1976), which limits review of Fourth Amendment claims if the
state has provided a petitioner with an opportunity to fully and
fairly litigate the claim.
(Opp. Mero. at 15.)
Additionally,
respondent noted that it was unnecessary to stay Mr. Stanley's
petition because he had already exhausted his Fourth Amendment
claim on appeal.
(Id. at 11-12.)
4
On October 26, 2009, petitioner moved for resentencing pursuant to New York Criminal Procedure Law ("CPL")
440.46, the Drug Law Reform Act of 2009, in New York Supreme
Court, Queens County.
(Opp. Aff. at 6-7.)
On February 19,
2010, petitioner's brother filed a motion to stay on
petitioner's behalf, which requested that the instant habeas
petition be held in abeyance pending the resolution of
petitioner's re-sentencing motion.
(See ECF No. 10, Motion to
Hold Petition in Abeyance ("Mot. to Stay").)
In his motion,
petitioner indicated that "[i]f [the re-sentencing] action is
favorable,
(Mot. to
Petitioner may terminate his Petition for relief."
Stay~
10.)
Respondent opposed petitioner's motion on the ground
that petitioner had failed to demonstrate how the state court's
decision to grant petitioner's re-sentencing motion 4 violated
petitioner's rights under federal law and, as a result, provided
a cognizable basis for a habeas claim.
Stay.)
(ECF No. 11, Opp. to
On March 4, 2010, this court directed petitioner to
respond to the issues raised by respondent's memorandum opposing
his application for a stay in light of the favorable decision on
his re-sentencing motion by March 23, 2010.
(Electronic Order
4
Respondent's opposition to petitioner's motion to hold his petition in
abeyance indicated that the state court had recently granted petitioner's
motion for re-sentencing and re-sentenced petitioner to a reduced term specifically, ten years in custody and three years of post-release
supervision.
(ECF No. 11, Memorandum of Law in Opposition to Motion for a
Stay ("Opp. to Stay").)
5
dated 3/4/10.)
Petitioner did not respond to the court's order.
On July 19, 2010, the court ordered Mr. Stanley to (1)
inform
the court in writing whether he intended to withdraw his
original and amended petitions in light of his earlier
representation that he would consider withdrawing his petition
in the event of a favorable outcome in his re-sentencing
proceeding;
(2)
if he did not intend to withdraw his petition,
advise the court whether he was still seeking to hold his
petition in abeyance pending his attempt to re-open his
suppression hearing in state court; and (3) if he did not wish
to withdraw the motion td stay, respond to respondent's
opposition memorandum and indicate what additional relief he was
seeking,
including potential amendments to his habeas petition.
(Electronic Order dated 7/19/10.)
In its order, the court
advised Mr. Stanley that if he failed to respond to the order by
August 6, 2010, his motion for a stay would be deemed withdrawn
and the court would consider dismissing his petition.
(Id.)
On August 6, 2010, petitioner requested an extension
of time to respond due to his relocation to Green Correctional
Facility, his late receipt of the court's July 19, 2010 Order,
and his limited access to the law library.
(ECF No. 16.)
The
court granted petitioner's request and deemed the motion to stay
withdrawn without prejudice to re-file by September 6, 2010.
(Electronic Order dated 8/10/10.)
6
On September 13, 2010, having
not received a response from petitioner, the court provided
petitioner with a final opportunity to respond by October 13,
2010 or the court would deem his habeas petitions withdrawn with
prejudice.
(Electronic Order dated 9/13/10.)
Petitioner again
failed to respond, and the court ordered petitioner to show
cause via telephone why his petition should not be dismissed
pursuant to Federal Rule of Civil Procedure 41(b) due to his
failure to comply with the court's orders dated March 4, 2010,
July 19, 2010, August 10, 2010 and September 13, 2010, each of
which ordered petitioner to inform the court in writing whether
he wished to withdraw the instant petition based upon his
statement in his February 19, 2010 motion to stay that he may
terminate his petition in light of a favorable outcome in his
re-sentencing proceeding.
(Electronic Order dated 10/19/10.)
Petitioner appeared at the show cause hearing on
November 3, 2010, after which the court granted his application
to stay the instant petition, retroactive to October 14, 2009,
the date of petitioner's initial request to hold his petition in
abeyance.
(Minute Entry dated 11/3/10.)
The court also ordered
that petitioner begin to pursue his state court remedies by
December 8, 2010 and return to federal court within 30 days
after exhausting his state court remedies.
(Id.)
On February 1, 2011, counsel for respondent advised
the court that she had neglected to serve petitioner with a copy
7
of the court's November 3, 2010 order.
(ECF No. 20.)
In the
letter, counsel for respondent also stated that petitioner had
not filed any motions in state court attacking his judgment of
conviction but had, through counsel, perfected an appeal of the
decision granting petitioner's re-sentencing motion.
(Id.)
The
court ordered respondent to file a status report with the court
within five business days of petitioner exhausting his state
court remedies.
(Electronic Order dated 2/2/11.)
On June 14, 2011, petitioner filed a motion pursuant
to CPL 440.10 in Supreme Court, Queens County alleging
prosecutorial misconduct, ineffective assistance of counsel, and
that the trial court improperly denied his suppression motion.
(See ECF No. 23, Letter Enclosing Petitioner's 440.10 Motion.)
On June 14, 2012, petitioner requested that this court intervene
in his pending 440.10 proceeding due to repeated adjournments;
this court declined his request.
(See ECF No. 24; Electronic
Order dated 12/2/13.)
On December 9, 2013, counsel for respondent informed
the court that on May 31, 2012, the New York Court of Appeals
had reversed the Second Department's decision affirming Mr.
Stanley's re-sentencing and remanded the matter to the Supreme
Court.
(ECF No. 26.)
Prior to his second re-sentencing, in
June 2012, petitioner filed a motion to set aside his original
sentence pursuant to CPL 440.20.
(Id.)
8
He ultimately withdrew
that motion in exchange for the state's agreement to an
expedited re-sentencing proceeding and a reduced sentence of
nine years, making him eligible for immediate release.
(Id.)
On June 20, 2012, petitioner was resentenced as a second felony
offender with a prior non-violent felony to a determinate prison
terms of nine years for his conviction of Criminal Possession of
a Controlled Substance in the Third Degree, to be followed by
three years of post-release supervision.
(Id.)
Petitioner's 440.10 motion was denied on December 11,
2013.
{See ECF No. 27, Status Letter from Johnnette Traill dated
1/6/14.)
In a status letter dated October 31, 2014, counsel for
respondent informed the court that Mr. Stanley had not sought
leave to appeal the denial of his 440.10 motion from the Second
Department and that time to seek leave had expired; thus,
petitioner failed to fully exhaust any claims contained in his
motion.
(See ECF No. 29.)
Based on Mr. Stanley's failure to timely seek leave to
appeal the denial of his 440.10 motion, respondent advised the
court that Mr. Stanley's petition should not be held in abeyance
any longer.
10/31/14.)
(See ECF No. 29, Letter from Ms. Traill dated
Because plaintiff had withdrawn his 440.20 motion
and had no proceedings pending in state court relating to either
his criminal trial or re-sentencing proceeding, and given that
he was no longer in custody, the court ordered petitioner to
9
advise the court whether he intended to pursue the instant
petition by December 3, 2014.
(Electronic Order dated 11/3/14.)
In its order, the court advised petitioner that failure to
comply with the order would result in dismissal of the instant
petition pursuant to Rule 41(b} for failure to comply with the
court's orders.
(Id.}
After plaintiff's failure to respond by
the court-ordered deadline, the court ordered respondent to
confirm plaintiff's address with his parole officer.
(Electronic Order dated 1/8/15.)
In a letter filed on January
13, 2015, counsel for respondent confirmed that petitioner did
in fact reside at the address listed on the docket and that he
had been visited there by his parole officer.
(ECF No. 31.)
Accordingly, this count granted petitioner a final opportunity
to inform the court by February 16, 2015 whether he intended to
pursue his habeas petition and again advised petitioner that
failure to comply with the court's orders would result in
dismissal of his petition.
(Electronic Order dated 1/16/15.)
To date, the court has not received any response from
petitioner.
(See generally Docket No. 09-cv-4646.)
DISCUSSION
As an initial matter, the court granted petitioner
motion to hold the instant petition in abeyance pending the
resolution of his re-sentencing proceeding and pursuit of his
state court remedies.
Given that
10
(1) petitioner was re-
sentenced and released from custody nearly three years ago,
(2)
petitioner failed to timely seek leave to appeal the denial of
his 440.10 motion, and (3) according to respondent, petitioner
has no other application pending in state court, the court lifts
the stay on the instant petition.
Rule 41(b) authorizes the district court to dismiss a
plaintiff's case sua sponte for failure to prosecute or comply
with the court's orders.
See Lesane v. Hall's Sec. Analyst,
Inc., 239 F.3d 206, 209 (2d Cir. 2001)
omitted).
(internal citation
A district court considering dismissal pursuant to
Rule 4l(b) must balance five factors: "(1) the duration of the
plaintiff's failure to comply with the court order,
(2) whether
plaintiff was on notice that failure to comply would result in
dismissal,
(3) whether the defendants are likely to be
prejudiced by further delay in the proceedings,
(4) a balancing
of the court's interest in managing its docket with the
plaintiff's interest in receiving a fair chance to be heard, and
(5) whether the judge has adequately considered a sanction less
drastic than dismissal."
(2d Cir. 2014)
Baptiste v. Sommers, 768 F.3d 212, 216
(internal citations and quotation marks omitted).
No one factor in the analysis is dispositive.
See id.
The
Second Circuit has cautioned that dismissal is "'a harsh remedy
to be utilized only in extreme situations.'"
at 209 (internal citation omitted).
11
Lesane, 239 F.3d
In general, pro se parties
"should be granted special leniency regarding procedural
matters."
(Id.)
The first factor weighs in favor of dismissal.
Mr.
Stanley's petition has been stayed since October 2009 to permit
him the opportunity to exhaust his state court proceedings and
amend his petition to add new claims.
After notice from
respondent that petitioner had not exhausted his claims and was
not pursuing any other claims in state court, the court twice
ordered petitioner to inform the court whether he intended to
pursue his presently-stayed petition.
Petitioner has not
contacted the court since June 2012, approximately three years
ago, despite being ordered to respond to numerous court orders.
The second factor also counsels dismissal, because the
court has warned petitioner repeatedly that his continued
failure to comply with the court's orders would result in
dismissal of his petition.
Prejudice to respondent, the third
factor, may be presumed because petitioner has unreasonably
delayed the progress of this case. See Blake v. Payane, No. 08
CIV. 0930, 2011 WL 7163172, at *2 (S.D.N.Y. Mar. 11, 2011)
(citing Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d
Cir. 1982)).
The court also considers the fourth factor by
balancing its interest in managing its docket with the
plaintiff's interest in receiving a fair chance to be heard.
12
In
the five years that have elapsed since Mr. Stanley's petition
was filed and held in abeyance, Mr. Stanley has not exhausted
his state court remedies for the grounds raised in his 440.10
motion or sought to amend his petition to include any other
cognizable claim for relief.
The only claim in the instant
petition, relating to a purportedly unlawful search, is
unreviewable by this court pursuant to the Supreme Court's
decision in Stone v. Powell, 428 U.S. 465 (1976) . 5
Furthermore, the court granted Mr. Stanley's request
to stay this action pending the outcome of his re-sentencing
motion, but has not heard from Mr. Stanley since he was resentenced to a time-served sentence on June 20, 2012.
Given Mr.
Stanley's prior representation that he would consider
withdrawing his petition in the event he received a favorable
outcome in his re-sentencing proceeding, the court's interest in
preventing this petition from remaining stagnant on the docket
indefinitely measures favorably against whatever interest
5
In Stone v. Powell, the Supreme Court held that "where the State has provided
an opportunity for full and fair litigation of a Fourth Amendment claim, a
state prisoner may not be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was
introduced at his trial." 428 U.S. at 494 (footnotes omitted).
Petitioner's
claim that he had standing to challenge the search's legality because he had
a reasonable expectation of privacy in the apartment was fully considered by
the state hearing court, trial court, and appellate court.
Furthermore,
although petitioner contends that he has new evidence (namely, the eviction
proceeding against him) that establishes his expectation of privacy, the
Supreme Court, Queens County expressly considered the fact that the building
landlord had commenced eviction proceedings against petitioner in denying his
suppression motion.
See People v. Stanley, 50 A.D.3d 1066, 1067 (N.Y. App.
Div. 2d Dep't 2008).
13
petitioner has in being heard before this court.
Nevertheless,
because the Second Circuit has stated that "[t]here must be
compelling evidence of an extreme effect on court congestion
before a litigant's right to be heard is subrogated to the
convenience of the court," the court concludes that this factor
does not alone dictate dismissal.
See, e.g., Baptiste, 768 F.3d
at 218-19.
Finally, the court has considered sanctions less
drastic than dismissal and concluded that, given the duration of
petitioner's non-compliance with court orders and failure to
prosecute his petition despite the numerous opportunities for
him to do so, no lesser sanction would be effective.
Petitioner's repeated failure to comply with the court's orders
indicates that he no longer wishes to pursue his petition
against respondent.
Accordingly, the court lifts the stay and,
upon consideration of the factors governing Rule 4l(b)
dismissals, dismisses the petition for petitioner's failure to
prosecute and comply with the court's March 4, 2010, July 19,
2010, August 10, 2010, September 13, 2010, November 3, 2014, and
January 16, 2015 orders.
CONCLUSION
For the foregoing reasons, the stay is lifted and Mr.
Stanley's petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is dismissed in its entirety for petitioner's
14
failure to prosecute and comply with the court ' s orders pursuant
to Federal Rule of Civil Procedure 41(b) .
The Clerk of the
Co urt is respectfully requesLed to enter j udgment in favor of
respondent , close this case , serve a cop y of this order on pro
se petitioner at his address , 20 - 64 21st Street , #lA , Astoria ,
NY 11105 , and note such mailing on the docket .
SO ORDERED .
Dated: Brooklyn , New York
June 23 , 2015
Krio
A . MATSUMOTO
United States District Judge
Eastern District of New York
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?