Brodeur v. City of New York et al
Filing
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MEMORANDUM DECISION AND ORDER. The petition for a writ of habeas corpus is denied, and the case is dismissed. Petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Thus, t he Court declines to issue a certificate of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. The Clerk is directed to enter judgment accordingly. Ordered by Judge Brian M. Cogan on 4/18/2013. Forwarded for judgment. C/M. (Siegfried, Evan)
C/M
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------CHRISTOPHER X. BRODEUR,
Petitioner,
- against WARDEN, ERIC M. TAYLOR CENTER,
Respondent.
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MEMORANDUM
DECISION AND ORDER
12 cv 5545 (BMC) (LB)
COGAN, District Judge.
I have construed the pleadings that petitioner pro se has filed as a petition for a writ of
habeas corpus falling principally under 28 U.S.C. § 2241. The specific relief he is seeking is
unclear. It may encompass either or both of the following: (1) dismissal of various misdemeanor
charges filed against him in 2009, but which have not yet been brought to trial, on speedy trial or
other constitutional grounds; (2) release or bail pending appeal of his conviction on other
charges. His federal claims are unexhausted and his state claim is not cognizable on federal
habeas corpus review, so his petition is denied.
BACKGROUND
Petitioner’s initial criminal charges arose out of a real estate dispute that petitioner had
with one Harry Stuckey over petitioner’s attempt to take an assignment of or buy into a lease that
Stuckey had for a building in Brooklyn. Petitioner was arrested for threatening Stuckey and
charged in Kings County Criminal Court with Aggravated Harassment Second Degree; Stalking
Fourth Degree; and Harassment Second Degree in February 2009 (the “February Charges”).
(The Aggravated Harassment charge was subsequently reduced to Attempted Aggravated
Harassment). The court issued an order of protection requiring petitioner to stay away from
Stuckey, and set bail in the amount of $2500, which petitioner posted and obtained his release.
Petitioner was accused of continuing to harass Stuckey that summer and he was arrested
again in late August or early September, 2009, and arraigned on new charges of Criminal
Contempt Second Degree (presumably, for violating the order of protection); Aggravated
Harassment Second Degree; and Harassment Second Degree (the “September Charges”). The
court entered another order of protection, and released petitioner on his own recognizance.
In early October, petitioner moved to dismiss the February Charges on state and federal
speedy trial grounds. That motion was denied in November, but days after he filed it, on October
10, petitioner had another encounter with Stuckey. Petitioner was arrested on December 4 as a
result of this encounter, and charged with Criminal Contempt Second Degree (presumably,
again, for violating the order of protection); Menacing Third Degree; and Harassment Second
Degree (the “December Charges,” and together with the February Charges and October Charges,
the “2009 Charges”). He was released on his own recognizance. He moved to dismiss the
December Charges in March, 2010 on state and federal speedy trial grounds; that motion was
denied on May 20, 2010. It is convenient here to jump ahead a bit; petitioner later moved, on
August 9, 2012, again on state and federal speedy trial grounds, to dismiss the September (2009)
Charges, which was also denied on September 4, 2012.
Returning in our narrative to the timeline, petitioner was supposed to appear on his 2009
Charges on June 29, 2011. He could not get to Kings County Criminal Court, however, because
he had been arrested on New York County charges in an unrelated case. He was ultimately
produced in Kings County Criminal Court on July 8, 2011. The court discharged his $2500 bail
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on the February Charges and set bail at $1 on each of the 2009 Charges. The case was scheduled
for hearing on March 28, 2012.
Then things got worse. Earlier, when the prosecutor was getting ready to try the
February Charges, he had given a witness list to petitioner or his attorney. Included on that list
was one Rachel Trachtenburg, a performance artist. On February 9, 2012, the prosecutor
requested an order of protection, accusing petitioner of harassing her by email. The court
granted the request. But on February 12, petitioner approached Trachtenburg again, harassing
her by email. Petitioner then failed to appear for his March 28, 2012 hearing date, and the court
issued a bench warrant. Petitioner was arrested on April 24, 2012, and the court increased bail
on the 2009 Charges to $5000.
As a result of his emails to Trachtenburg, petitioner was arrested and arraigned on July
12, 2012 on three counts each of Criminal Contempt Second Degree and Aggravated Harassment
Second Degree, and one count of Harassment Second Degree (the “2012 Charges”). He was
convicted before a jury of all seven counts on November 9, 2012, and sentenced, on December 6,
2012, to consecutive sentences totaling three years. His appeal is currently pending.
DISCUSSION
There is a threshold issue as to whether petitioner’s claims are properly cognizable under
28 U.S.C. § 2241 or should be characterized as falling under 28 U.S.C. § 2254. Although, under
Cook v. New York State Div. of Parole, 321 F.3d 274 (2d Cir. 2003), and James v. Walsh, 308
F.3d 162, 166 (2d Cir. 2002), state prisoners are generally relegated to §2254, there remains a
narrow window for state prisoners under §2241 where their custody is not “pursuant to the
judgment of a State court … .” 28 U.S.C. § 2254(a). Here, although petitioner is in custody
pursuant to a judgment of the state court – his conviction on the 2012 Charges –his petition for
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relief is not challenging or arising from that conviction. For the most part, he appears to be
challenging his continued detention on the 2009 Charges, for which there has been no judgment;
indeed, the absence of a judgment is the essence of petitioner’s complaint. Under these
circumstances, the proper vehicle for challenging his detention is §2241. See Scranton v. New
York, 532 F.2d 292, 293 (2d Cir. 1976); Marte v. Berkman, No. 11 civ 6082, 2011 WL 4946708
(S.D.N.Y. Oct. 11, 2011).
There is one possible exception to this. It may be – again, the petitioner’s submissions
are virtually indecipherable – that petitioner is seeking habeas corpus relief to fix bail pending
the appeal of his conviction on the 2012 Charges. 1 That would properly be characterized as
seeking relief under §2254. See Garson v. Perlman, 541 F. Supp. 2d 515 (E.D.N.Y. 2008)
(analyzing habeas claim for bail pending appeal under §2254). Such characterization could, in
turn, trigger the obligation to advise petitioner of the limitations on “second or successive”
petitions under 28 U.S.C. §2244, and to provide him with the opportunity to withdraw his current
petition to avoid the possible forfeiture of other claims that he might later seek to raise under
§2254. See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998).
However, to the extent that petitioner claims entitlement to bail pending appeal of his
conviction on the 2012 Charges, the record demonstrates that he has not sought, let alone
exhausted his avenues to seek, such relief in state court. See N.Y. Crim. Proc. L. §460.50. His
failure to exhaust his state law remedies means that relief is unavailable to him under 28 U.S.C. §
2254, and requires dismissal of the petition without prejudice to presenting that claim, together
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I had previously recommended to petitioner that he make his submissions “short, concise, and unemotional, as the
Court is having great difficulty understanding his prior submissions.” Petitioner has ignored this recommendation,
and his numerous subsequent submissions are just as hard or harder to decipher as his initial submissions. Based on
the nature of his submissions, it does not appear that petitioner’s problem is one of illiteracy, intellectual disability,
or lack of legal sophistication, but, instead, his chosen method of self-expression. Even giving him the maximum
indulgence accorded to pro se litigants, much of what he writes is simply impossible to understand.
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with any other claims concerning his conviction on the 2012 Charges, once those claims are
exhausted. See Garson (declining to consider bail pending appeal where state court procedures
remained available). Because a dismissal for failure to exhaust is without prejudice, I need not
give the “single petition” notice and opportunity to withdraw his petition required by Adams.
See Slack v. McDaniel, 529 U.S. 473, 485-88 (2000) (habeas petition including new claims filed
after dismissal of initial petition without prejudice for failure to exhaust remedies is not a
“second or successive” petition for purposes of 28 U.S.C. § 2244); Hanton v. Lantz, No. 09 cv744, 2010 WL 2232642 (D. Conn. May 27, 2010) (Adams notice need not be given where
habeas claim, although arising under §2254, is dismissed for failure to exhaust).
Similarly, to the extent petitioner is seeking a reduction of his bail pending trial on the
2009 Charges, that claim, cognizable under §2241, is also unexhausted. Section 2241, unlike
§2254, does not have an express exhaustion requirement, but the case law that has considered the
issue in this Circuit is unanimous in holding that the exhaustion requirement applies equally to
petitions under §2241. See e.g., Foster v. Murphy, 686 F.Supp. 471, 474 (S.D.N.Y. 1988)
(“Construing their complaint as a petition for habeas corpus imposes a requirement that plaintiffs
have exhausted their state remedies. This is so whether their petition is considered as brought
under 28 U.S.C. § 2254, which imposes the exhaustion requirement by statute or under 28 U.S.C.
§ 2241, upon which courts have engrafted a requirement of exhaustion.”). There are, again,
procedures under state law of which petitioner may avail himself, see N.Y. Crim. Proc. Law
§530.30; N.Y. C.P.L.R. Article 70, and he must utilize those procedures before he comes to this
Court. 2
2
In his latest submission, petitioner asserts that he attempted to file a state habeas petition, but he could not because
it has to be filed in the county in which he is detained. Petitioner says that is “impossible,” but he does not say why.
The mail is obviously delivered in all counties.
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Next, to the extent petitioner is seeking immediate trial on the 2009 Charges on federal
speedy trial or other constitutional grounds (his submissions are, again, unclear) upon penalty of
dismissal, that relief is available under federal habeas corpus. See Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123 (1973). However, that claim is also not
exhausted. There are similarities between this case and Scranton, where the petitioner sought
relief under §2241dismissing the charges against her on speedy trial grounds because she had not
been brought to trial five years after her indictment. She had made multiple speedy trial motions
in the state court which had been denied. Nevertheless, the Second Circuit denied the petition
for failure to exhaust. It held that state law, though clearly operating in an imperfect manner, did
offer the petitioner two potential remedies – go to trial, preserve the speedy trial issue, and raise
it on appeal if convicted; or plead guilty while preserving the speedy trial issue (as New York
law allows) and raise it on appeal.
Petitioner is in a better practical position than the Scranton petitioner because if he is ever
convicted of the 2009 Charges, he will not serve any additional custodial time on them. The
District Attorney, in response to an inquiry from the Court, has stipulated that petitioner must get
credit for time served on the 2012 Charges in connection with any sentence imposed on the 2009
Charges, and thus, even if convicted on the 2009 Charges, he will receive a time served sentence:
“The Court is correct that, if defendant is convicted of the charges under the three 2009 dockets,
then he will not serve any additional time after his sentence on his 2012 convictions is
discharged.” The District Attorney has explained that the reason petitioner has not been tried on
the 2009 Charges is that, once he is released from custody on the 2012 Charges, a conviction on
the 2009 Charges would serve as a vehicle for a new order of protection in favor of Stuckey.
Thus, although petitioner vehemently protests his confinement based on the 2009 Charges, his
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conviction on the 2012 Charges is the primary reason for his detention, and the time he is serving
on those charges will eliminate the possibility of additional time for the 2009 Charges, if he is
ever convicted. Indeed, if petitioner is seeking a reduction of bail for the 2009 Charges, it is not
clear that such reduction would do him any good, as he would still be in custody on the 2012
Charges.
For the same policy reasons behind implying a requirement of exhaustion in §2241 cases,
any relief petitioner seeks here is also barred by Younger v. Harris, 401 U.S. 37 (1971), in light
of the ongoing nature of the state court criminal proceedings and the important state interests
involved. See Scranton.
Finally, to the extent petitioner's claims are based on N.Y. Crim. P. L. §30.30 (the state
speedy trial statute), this Court does not presently have, and will never have, the power to review
that claim. This Court cannot review violations of state speedy trial law. See Bermudez v.
Conway, No. 09 civ. 1515, 2012 WL 3779211, *9 (E.D.N.Y. Aug. 30, 2012) (“To the extent that
Petitioner raises speedy trial violations premised on N.Y. Criminal Procedure Law § 30.30, a
state statutory protection, his claims are not cognizable on federal habeas review.”); Hodges v.
Bezio, No. 09 civ. 3402, 2012 WL 607659, *4 (E.D.N.Y. Feb. 24, 2012) (“any alleged violation
of New York's statutory speedy trial provision is a state law claim not cognizable on federal
habeas review”); Gibriano v. Attorney General, 965 F. Supp. 489, 491-92 (S.D.N.Y. 1997)
(same).
CONCLUSION
The petition for a writ of habeas corpus is denied, and the case is dismissed. Petitioner
has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Thus, the
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Court declines to issue a certificate of appeal. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438, 444, 82 S.Ct. 917 (1962). The Clerk is directed to enter judgment
accordingly.
SO ORDERED.
Digitally signed by Brian M.
Cogan
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
April 18, 2013
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