Allen v. Graham
MEMORANDUM AND ORDER: As petitioner still has "the right under the law of the State to raise" the questions he presents here, he has not exhausted state remedies and his petition must be dismissed. Accordingly, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed in forma pauperis is dismissed without prejudice. As petitioner has not made a substantial showing of the denial of constitutional right, a certificate of appealability will not i ssue. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is respectfully requested to serve a copy of this motion on petitioner at the address listed on the docket sheet. SO ORDERED by Judge Kiyo A. Matsumoto, on 12/2/2013. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa) (Latka-Mucha, Wieslawa)
IH CLEEJ('S OFFie!:
D'~TRICT C.OURT E.D.W.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DEC 0 2 2013
13-CV -6317 (KAM)
-againstHAROLD D. GRAHAM,
MATSUMOTO, United States District Judge.:
On November 15,2013, petitioner, incarcerated at Auburn Correctional Facility,
filed this petition, pro se, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following
his November 2,2012 conviction in Richmond County Supreme Court. l In accordance with
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28
U.S.C. foIl. § 2254, the Court has reviewed the petition and determined that the petitioner is not
entitled to relief in this Court. The petition is dismissed without prejudice.
Before a federal court may entertain a habeas corpus petition on behalf of a state
prisoner, the petitioner must first exhaust her or his available state remedies. 28 U.S.c.
§ 2254(b)(1)(A) and (c); see also Woodfordv. Ngo, 548 U.S. 81,92 (2006) (explaining that "[a]
state prisoner is generally barred from obtaining federal habeas relief unless the prisoner has
properly presented his or her claims through one complete round of the State's established
lpetitioner's previous § 2241 petition, filed when he was a pretrial detainee held on the
criminal charges of which he has now been convicted, was dismissed without prejudice
petitioner did not meet the exceptionally high standard for federal courts to intervene in an
ongoing criminal proceeding. See Allen v. Maribal, ll-CV-2638 (KAM) (Mem. & Order dated
July 25,2011, ECF No.3).
appellate review process") (citation and internal quotation marks omitted); Jimenez v. Walker,
458 F.3d 130,48-49 (2d Cir. 2006). The exhaustion doctrine assures the "respect for our dual
judicial system and concern for harmonious relations between the [federal and state] adjudicatory
institutions," and "increas[es] the likelihood that the factual allegations necessary to a resolution
of the claim will have been fully developed in state court, making federal habeas review more
expeditious." Daye v. Attorney Gen. o/NY, 696 F.2d 186,191 (2d Cir. 1982) (en bane).
Although "both federal and state courts are charged with securing a state criminal defendant's
federal rights, the state courts must be given the opportunity to consider and correct any
violations of federal law." Jones v. Vacca, 126 F.3d 408, 413 (2d Cir. 1997) (internal citation
In the instant case, petitioner was convicted on November 2,2012 and sentenced
on January 10,2013 in the Supreme Court of the State of New York, Richmond County. (Pet.
1.) His appeal in the Supreme Court of the State of New York, Appellate Division, Second
Department, is pending. (Pet. 1.) As petitioner still has "the right under the law of the State to
raise" the questions he presents here, he has not exhausted state remedies and his petition must
be dismissed. 28 U.S.C. § 2254 (b)(l)(A), (c)?
Accordingly, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
filed in forma pauperis is dismissed without prejudice for the reasons set forth above. As
petitioner has not made a substantial showing of the denial of constitutional right, a certificate of
petition dismissed for failure to exhaust state court remedies is not considered a
second or successive petition that may be barred under 28 U.S.C. § 2244(b). See Camarano v.
Irvin, 98 F.3d 44, 47 (2d Cir. 1996). However, any new petition must be filed within the one
year period of limitations after the judgment in petitioner's case becomes final. See 28 U.S.C.
appealability will not issue. 28 U.S.C. § 2253. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis
status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of Court is respectfully requested to serve a copy of this motion on petitioner
at the address listed on the docket sheet.
Kiyo A. Matsumoto
United States District Judge
Dated: Brooklyn, New York
December 2, 2013
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