Henry v. United States of America

Filing 40

ORDER. For the reasons set forth in the attached Memorandum and Order, petitioners application for a writ of habeas corpus is denied. A certificate of appealability shall not issue as petitioner has not made a substantial showing of the denial of a constitutional right. The court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this judgment denying the petition would not be taken in good faith. Respondent shall serve a copy of this Memorandum and Order on petitioner and note service on the docket by December 16, 2014. The Clerk of Court is respectfully requested to enter judgment in accordance with this Memorandum and Order and to close the case. Ordered by Judge Kiyo A. Matsumoto on 12/12/2014. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------x
CHRISTOPHER A. HENRY,
Petitioner,
-against-

MEMORANDUM AND ORDER
11-CV-391 (KAM)

UNITED STATES OF AMERICA
Respondent.
------------------------------x
KIYO A. MATSUMOTO, United States District Judge:
On November 5, 2010 and November 22, 2010, pro se
petitioner Christopher A. Henry (“petitioner”) filed petitions
for a writ of habeas corpus challenging his ongoing
incarceration while awaiting trial on charges stemming from an
alleged sexual assault.

(See generally Docket No. 10-cv-5172,

ECF No. 1, Pet. (the “10-cv-5172 Petition”); Docket No. 11-cv391, ECF No. 1, Pet.)

On January 26, 2011, this court dismissed

the 10-cv-5172 Petition without prejudice as premature; for the
reasons set forth below, the court also dismisses the instant
petition in 11-cv-391 without prejudice.
BACKGROUND
On December 22, 2003, petitioner was charged in New
York Supreme Court, Kings County, by indictment No. 8254/03 with
Criminal Sexual Act in the First Degree (N.Y. Penal Law
§ 130.50[1]), a class B felony; Criminal Sexual Act in the Third
Degree (N.Y. Penal Law § 130.40[3]), a class E felony; Sexual
Abuse in the First Degree (N.Y. Penal Law § 130.65[1]), a class

D felony; Assault in the Second Degree (N.Y. Penal Law
§ 120.05[6]), a class D felony, and Assault in the Third Degree
(N.Y. Penal Law § 120.00[1]), a class A misdemeanor.

(ECF No.

12, Affidavit of Anthea H. Bruffee in Opposition to Petitions
for Writs of Habeas Corpus (“Bruffee Aff.”) ¶ 4.)

The record

before the court sheds no light on these charges because the
criminal case does not appear to have progressed since
petitioner’s arraignment on January 15, 2004.

Since the

arraignment, there have been approximately 80 adjournments in
petitioner’s criminal case (id. ¶ 5), and, to date, petitioner
has not been tried, convicted, or sentenced.

On October 31,

2014, petitioner informed the court that he is currently being
held at the George R. Vierno Center at Rikers Island.

(See ECF

No. 38, Notice of Change of Address.)
On November 5, 2010, petitioner filed a petition,
naming the United States as the respondent, 1 for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 with this court challenging
his ongoing detention in connection with his pending criminal
case.

(See generally Docket No. 10-cv-5172, ECF No. 1, Pet.)

On November 22, 2010, petitioner filed a similar petition for a
writ of habeas corpus with the United States District Court for
the Southern District of New York on a court form used for 28

1

Because petitioner has not been in federal custody and the Kings County
District Attorney’s Office has appeared on behalf of respondent, the court
substitutes the Warden of the Bellevue Hospital Prison Ward as respondent.

2

U.S.C. § 2255 petitions, challenging the same pending criminal
action in Kings County.

(ECF No. 1, Pet.)

By Order dated

December 30, 2010, the petition was transferred from the
Southern District to this court in the interests of justice to
determine whether the petition could be re-characterized as a
petition pursuant to 28 U.S.C. § 2254, as petitioner alleged
that he was in custody pursuant to proceedings in the Supreme
Court of the State of New York, Kings County. 2
Transfer Order at 1.)

(See ECF No. 4,

The instant petition raised the following

grounds: (1) “Article 36”; (2) ineffective assistance of
counsel; (3) “[n]o council [sic] intervention”; and (4)
violation of petitioner’s Sixth Amendment rights.

(ECF No. 1,

Pet. at 4-5.)
On January 26, 2011, this court dismissed the 10-cv5172 Petition without prejudice as premature because petitioner
(1) was not in state custody pursuant to a state court judgment,
(2) had not exhausted his state court remedies, and (3) had not
alleged an absence of an available state corrective process or
circumstances that would render such process ineffective to
protect petitioner’s rights.

(See Docket No. 10-CV-5172, ECF

No. 2, Memorandum and Order at 1-3.)
2

On February 14, 2011,

Although the Southern District of New York did not find the petition
unsustainable under to 28 U.S.C. § 2255, the court properly noted that
Section 2255 applies only to petitioners in federal custody, while petitioner
alleged he was in custody pending a state court criminal proceeding. (Docket
No. 11-CV-391, ECF No. 4, Transfer Order.)

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petitioner filed a letter requesting that the court “re-open”
that petition, arguing that his petition was not premature.
(See Docket No. 10-CV-5172, ECF No. 4, Letter dated 2/14/2010.)
The court denied petitioner’s request because the relief sought
by petitioner in that case would be fully addressed by the
instant petition.
dated 7/11/11.)

(Docket No. 10-CV-5172, Electronic Order
Respondent submitted an affidavit and

memorandum of law in opposition to the petition on April 8,
2011.

(ECF No. 12.)
DISCUSSION

I.

Legal Standard
Section 2254 of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) provides that “a district court
shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.”

28 U.S.C. § 2254(a).

Furthermore, Section 2254

requires that, in order to be eligible for habeas relief, a
petitioner must have “exhausted the remedies available in the
courts of the State” or demonstrated that “there is an absence
of available state corrective process; or circumstances exist
that render such process ineffective to protect the rights of
the applicant.”

28 U.S.C. § 2254(b)(1)(A)-(B).

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State remedies

are not deemed exhausted until a petitioner has presented the
federal constitutional claim’s “essential factual allegations”
and “fundamental legal basis” to the state’s highest court (as
well as the lower courts).

Daye v. Att’y Gen. of State of N.Y.,

696 F.2d 186, 191-92 (2d Cir. 1982) (en banc); see Ramirez v.
Att’y Gen. of State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001)
(citing Picard v. Connor, 404 U.S. 270, 276–77 (1971)).
Title 28 U.S.C. § 2241, however, “by its terms
requires only that a petitioner be ‘in custody in violation of
the Constitution or laws or treaties of the United States,’
without reference to a state court judgment.”

Marte v. Berkman,

No. 11 CIV. 6082, 2011 WL 4946708, at *5 (S.D.N.Y. Oct. 18,
2011), aff'd sub nom. Marte v. Vance, 480 F. App’x 83 (2d Cir.
2012).

Accordingly, courts in this Circuit have construed pre-

trial habeas petitions as arising under Section 2241.

See,

e.g., Johnson v. New York, No. 12-CV-03213, 2012 WL 2861004, at
*1 (E.D.N.Y. July 11, 2012) (considering pre-trial Section 2254
petition as an application pursuant to Section 2241 and
collecting cases).
Although Section 2241 does not contain a statutory
exhaustion requirement, court have interpreted it to require a
petitioner to exhaust available state court remedies before
seeking relief pursuant to Section 2241 in federal court.
Robinson v. Sposato, No. CV-11-0191, 2012 WL 1965631, at *2

5

(E.D.N.Y. May 29, 2012) (citing Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632–34 (2d Cir. 2001)).

If a

petitioner’s remedies remain unexhausted, he may only seek a
writ of habeas corpus under Section 2241 if: “(1) he establishes
cause for his failure to exhaust and prejudice as a result of
the alleged violation of federal law . . . or (2) he
demonstrates that the failure to consider his claims will result
in a fundamental miscarriage of justice.”

Robinson, 2012 WL

1965631, at *2 (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)).
Finally, pleadings by a pro se litigant “must be
construed liberally.”

Thompson v. Choinski, 525 F.3d 205, 209

(2d Cir. 2008) (citing Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir.2006)).

“[A] pro se complaint is

interpreted so as ‘to raise the strongest arguments that [it]
suggests,’” in order to prevent pro se litigants from being
unfairly disadvantaged by their lack of formal legal training.
Harris v. I.N.S., No. 03 CV 2399, 2004 WL 951510, at *1
(E.D.N.Y. Apr. 29, 2004) (internal citations omitted).
II.

Application
Petitioner acknowledges that he is in custody awaiting

trial and not “pursuant to the judgment of a State court.”

(See

Pet. ¶ 2; see also ECF No. 12, Memorandum of Law [in Opposition
to Petitions for Writs of Habeas Corpus] (“Resp’t Mem.”) at 1-

6

2.)

Thus, this court lacks jurisdiction to entertain this

petition pursuant to Section 2254.

See Johnson v. New York,

2012 WL 2861004, at *1 (finding that a petitioner awaiting a
second trial after a mistrial was “not in custody pursuant to a
state court judgment.”); Robinson, 2012 WL 1965631, at *1
(“Since petitioner, a pretrial detainee at the time he commenced
this proceeding, was not ‘in custody pursuant to the judgment of
a State court’ at the time he filed his petition, he cannot seek
habeas corpus relief under Section 2254.”); Walker v. Sposato,
No. 11-CV-576, 2012 WL 580234, at *1 (E.D.N.Y. Feb. 17, 2012)
(determining the court lacked jurisdiction over § 2254 petition
filed before petitioner had “proceeded to trial”).

Accordingly,

absent any indication that petitioner has been convicted of the
offense with which he is charged or that he has exhausted his
state court remedies, 3 both of which are necessary to the filing
of a petition under Section 2254, the instant petition is
premature and must be dismissed without prejudice.
Although petitioner may not seek relief under Section
2254 because he is not in custody pursuant to a state court
judgment, in accordance with the liberal construction given to
pro se complaints, the court will construe his petition to have
been filed under 28 U.S.C. § 2241.

3

See Marte, 2011 WL 4946708,

Petitioner’s failure to exhaust available state court remedies is discussed
below in the context of Section 2241.

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at *5 (construing a petition under Section 2254 as a petition
pursuant to Section 2241).

The petition must nevertheless be

dismissed, however, because petitioner has not exhausted his
state court remedies.
Petitioner has not alleged that he has sought any
relief in state court for the claims presented in his petition.
(Resp’t Mem. at 8-11.)

According to respondent, the only

motions petitioner has made in his pending criminal case have
been for review of the grand jury minutes and to repeatedly
request examinations under Criminal Procedure Law 730, New
York’s criminal fit-to-proceed statute.

(Bruffee Aff. ¶ 41.)

Petitioner has not availed himself of any available state
remedies.

In its opposing memorandum of law, respondent details

some of the state remedies available to a detainee in
petitioner’s position, including a motion in state court for a
writ of habeas corpus pursuant to New York Civil Procedure Law
and Rules 7004(c) and/or a motion for release or transfer to
civil commitment pursuant to the United States Supreme Court’s
decision in Jackson v. Indiana, 406 U.S. 715 (1972). 4

Moreover,

petitioner has not asserted any facts establishing cause for his
failure to exhaust state remedies, nor has he indicated that

4

Under Jackson, “a defendant in [New York State] adjudicated incompetent is
entitled to be released or civilly committed pursuant to article 9 of the
Mental Hygiene Law upon a finding that the defendant's chances of achieving
competency are ‘minimal’ or ‘nonexistent.’” People v. Schaffer, 657 N.E.2d
1305, 1310 (N.Y. 1995) (quoting Jackson, 406 U.S. at 727).

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failure to consider his claims would result in a fundamental
miscarriage of justice.

Accordingly, his petition must be

dismissed. 5
CONCLUSION
For the reasons set forth above, petitioner’s
application for a writ of habeas corpus is denied.

A

certificate of appealability shall not issue as petitioner has
not made a substantial showing of the denial of a constitutional
right.

See 28 U.S.C. § 2253(c)(2).

The court certifies,

pursuant to 28 U.S.C. § 1915(a), that any appeal from this
judgment denying the petition would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438 (1962).
Respondent shall serve a copy of this Memorandum and
Order on petitioner and note service on the docket by December
16, 2014.

The Clerk of Court is respectfully requested to enter

judgment in accordance with this Memorandum and Order and to
close the case.
SO ORDERED.
Dated:

December 12, 2014
Brooklyn, New York
__________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

5

Because the court dismisses petitioner’s Section 2241 petition for failure
to exhaust state remedies, the court does not consider the merits of
petitioner’s claims.

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