Nelson v. Hynes et al

Filing 4

ORDER DISMISSING CASE: For the reasons set forth in the enclosed Memorandum and Order, the petition for a writ of habeas corpus is dismissed without prejudice. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2). 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, 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 respectfullyrequested to enter judgment, serve a copy of this Memorandum and Order on petitioner, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 2/19/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DERIC NELSON,
Petitioner,
-against-

MEMORANDUM AND ORDER
14-CV-603 (KAM)

CHARLES J. HYNES, Acting District Attorney's
Office of County of Kings; DORA B. SCHRIRO,
Commissioner of Corrections Department of New
York City; and WARDEN, Robert N. Davoren
Complex,
Respondents.
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MATSUMOTO, United States District Judge.
On January 28, 2014, pro se petitioner Deric Nelson, who was at the time
detained at the Robert N. Davoren Complex on Rikers Island, filed a new petition for a writ of
habeas corpus “pursuant to the provisions of 28 U.S.C. § 2241 and § 2244.” (ECF No. 1,
Petition for Writ of Habeas Corpus dated 12/29/13 and filed 1/28/14 (“Pet.”) at 1.) He paid the
$5 filing fee. For the reasons set forth below, the petition is dismissed without prejudice.
BACKGROUND
At the time he filed the instant petition, petitioner was in pre-trial detention on a
pending criminal case in the State of New York, Kings County, under indictment and docket
number 00046-2010, charging him with offering a false instrument for filing in the first degree,
grand larceny in the first degree, and falsifying business records in the first degree. Petitioner
previously filed two prior petitions challenging his pre-trial detention on the same indictment in
Nelson v. Hynes, et al., No. 12-CV-4913-KAM, and Nelson v. Hynes, No. 13-CV-3447-KAM.
He has also filed two civil actions naming his former attorneys in that pending criminal
proceeding, Nelson v. Brown, 13-CV-3446-KAM, and Nelson v. Stella, 13-CV-6812-KAM. The

history of his arrest and pending prosecution was summarized in this court’s January 17, 2013
Order in No. 12-CV-4913-KAM. See Nelson v. Hynes, et al., No. 12-CV-4913, 2013 WL
182793, at *1 (E.D.N.Y. Jan. 17, 2013). The court construed the two prior petitions as being
brought pursuant to 28 U.S.C. § 2241, and dismissed them both for failure to exhaust state court
remedies. Id.; Nelson v. Hynes, No. 13-CV-3447, 2013 WL 5502901 (E.D.N.Y. Oct. 2, 2013).
The two civil actions against his former attorneys remain pending in this court.
The instant petition appears to renew petitioner’s challenge to his custody and
pending prosecution in the 00046-2010 indictment. Petitioner alleges that he “has been detained
for a total of 136 days,” having been most recently remanded on December 18, 2013. (Pet. at 1.)
He also “seeks a fair hearing to redress the case docket in questions based upon the merits and in
the best interest of justice being served seeing that his good name is cleared of the allegations
against him.” (Pet. at 1.) Petitioner states that he “brings this action on the grounds of the
violation of his rights afforded to him by New York State Constitution Articles 1 § 11, and 12, in
conjunction with United States Constitution Bill Of Rights 1st, 4th, 5th, 8th, 9th and 14th
Amendments, Title 42 Section 1981, 1983, and 1985.” (Pet. ¶ 28.)
Petitioner alleges that the state criminal prosecution and procedures are part of a
conspiracy to seize real estate interests owned by petitioner. (Pet. ¶¶ 7-13, 17-21, 36, 46-48, 51.)
“[T]he petitioner assumes that acting Judge John Walsh, acting District Attorney Charles J.
Hynes and Bernard Shafran et al conspired together to seize the Real Estate interest of the
petitioner using racial discrimination and religious diversity by way of their class of citizenship.”
(Pet. ¶ 17.) He further alleges that “respondents have violated his right not [to] be forced into
contracts with parties who may have a different religious belief.” (Pet. ¶ 52.) “The respondents

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have used race and religious diversity to hold the petitioner in servitude to the County of Kings
Supreme Court in regards to their failing to hold pre-trial conferences that will prove beyond a
reason of a doubt his innocence and further has used class of citizenship to bar the petitioner
from asserting his claims and counterclaims against his accusers using his status being merely a
Black male in order to bar his contracts from having legal standing.” (Pet. ¶ 53.)
Petitioner alleges that he was denied certain preliminary hearings in his pending
criminal case, including Huntley and Mapp/Dunaway hearings and a hearing pursuant to New
York’s speedy trial statute, New York Criminal Procedure Law § 30.30. (Pet. ¶¶ 30-32, 49.) He
asserts that his right to face his accuser has been violated and that he has been “threatened to
proceed at points with a trial void of a jury of his peers.” (Pet. ¶¶ 32-33, 55.) He alleges that he
was ordered to undergo competency examinations pursuant to New York Criminal Procedure
Law § 730.1 (Pet. ¶¶ 23-24, 33-34.) He further alleges that Judge Joel M. Goldberg ordered his
detention during the holiday season in order to pressure him to “capitulate to charges that he did
not commit nor authorize.” (Pet. ¶ 27.)
The petition includes multiple references to the pending civil actions that
petitioner filed in this Court against his former attorneys, Damien Brown and John B. Stella, in
Nelson v. Brown, 13-CV-3446-KAM, and Nelson v. Stella, 13-CV-6812-KAM. (Pet. ¶¶ 6, 26,
34, 38, 65, 74.) He alleges that his attorneys “displayed negligence in having his open case file

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Petitioner asserts that he must be found competent, because, as a former member of the New
York Police Department, “if he was ever found incompetent then surely various former arrestees
could then assert that they were falsely accused and then convicted as a result of his negligence.”
(Pet. ¶ 63.)
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be asserted to reflect his innocence.” (Pet. ¶ 29.) Petitioner alleges that subsequent procedures
were conducted in his criminal case in retaliation for filing these civil actions. (Pet. ¶¶ 75-77.)
Petitioner also asserts that he “is under threat of injury being placed in a
Correctional Center were [sic] he has had previous arrestees placed while being a former NYPD
officer,” and, in the same sentence, that he “is at further risk of being found incompetent by his
accusers . . . in order that they may bar the prosecution of his former attorneys for their negligent
acts while assigned as his representation.” (Pet. ¶ 59.)
The petition also mentions petitioner’s mother, Margo Nelson, and alleges that
she suffered physical injury and property damage when the New York City Police Department
forced entry to her home in order to detain petitioner on March 5, 2012. (Pet. ¶¶ 68, 86.) Margo
Nelson is not named as a plaintiff in any of the actions or petitions Deric Nelson filed in this
court. Petitioner attaches to his petition a May 22, 2012 “Notice of Claim” captioned for the
Supreme Court of the State of New York, County of New York demanding damages in the
amount of $5 million on behalf of Margo Nelson. (ECF No. 1, Ex. F, ECF pp. 19-20.)
Petitioner cites the gate-keeping provisions of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), including the limitations period and the exhaustion requirement.
(Pet. ¶¶ 79-82.) He asserts that he “has exhausted his state remedies in having the People of the
State of New York dismiss the charges against him and or have the acting District Attorney move
the court into the Federal jurisdiction to answer interrogatories that he has agreed have been
raised by way of his silence being acceptance and the lack thereof totally of any controversy
before the court.” (Pet. ¶ 81.) He acknowledges that he has not been convicted or sentenced, but

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nonetheless requests habeas relief “in order to have the acting District Attorney redress the nature
and cause of the action against him.” (Pet. ¶ 83.)
The petition “demands that the respondents provide answers to the interrogatories
of this petition within seventy-two (72) hours.” (Pet. ¶ 57.) An undated document attached to
the petition requests a “Bill of particular and demand to produce” records and exhibits in the
criminal case “within 72 hours from the receipt of demand.” (ECF No. 1, Ex. F, ECF p. 22.)
Petitioner also “demands that his body is produced before the court immediately and that he
relies further on the sound mind of his natural mother Margo Nelson to initiate any action on his
behalf that may assist in his full restoration of his good name.” (Pet. ¶ 60.) He does not seek any
other relief.
DISCUSSION
I.

Habeas Petition
As in petitioner’s prior petitions, the nature of his claims and desired relief is

unclear. To the extent that petitioner wishes to challenge his custody status pursuant to 28
U.S.C. § 2241, he must first exhaust the remedies available through state court procedures. As
this court previously explained, petitioner must “present[] the federal constitutional claim
asserted in the petition to the highest state court (after preserving it as required by state law in
lower courts) and inform[] that court (and lower courts) about both the factual and legal bases for
the federal claim.” Nelson, 2013 WL 182793, at *4 (quoting Ramirez v. Att’y Gen. of State of
N.Y., 280 F.3d 87, 94 (2d Cir. 2001)) (internal quotation marks omitted). A petitioner who has
not exhausted available state court remedies may only seek a writ of habeas corpus if: “(1) he
establishes cause for his failure to exhaust and prejudice as a result of the alleged violation of

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federal law ... or (2) he demonstrates that the failure to consider his claims will result in a
fundamental miscarriage of justice.” Robinson v. Sposato, No. 11–CV–191, 2012 WL 1965631,
at *2 (E.D.N.Y. May 29, 2012) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). In the
two prior petitions, the court found that petitioner had failed to fully exhaust the procedures
available in state court and dismissed them without prejudice. Nelson, 2013 WL 182793;
Nelson, 2013 WL 5502901.
In the instant petition, petitioner asserts that he has exhausted his state remedies,
because the State did not dismiss the criminal charges against him and “the lack thereof totally of
any controversy before the court.” (Pet. ¶ 81.) However, he has not presented the federal
constitutional claims to the highest state court, and he still has an open avenue for doing so
through the pending criminal prosecution and the possibility of subsequent appellate review. He
has also failed to establish any cause for his failure to exhaust his state court remedies or any
prejudice resulting from the alleged violation of his federal constitutional rights. Accordingly,
this petition, too, is dismissed without prejudice.
II.

Section 1983 Claim
In liberally construing the petition from a pro se litigant, the court has also

considered whether petitioner’s claims could be maintained as a civil rights action pursuant to 42
U.S.C. § 1983. See Thompson v. Choinski, 525 F.3d 205, 209-10 (2d Cir. 2008). Petitioner’s
most recent petition alleges unspecified racial and religious discrimination and other alleged
violations of his constitutional rights under 42 U.S.C. §§ 1981, 1983 and 1985.
To the extent that the petition seeks the termination of prosecution and dismissal
of the indictment or interference in the competency evaluations, these claims are precluded by

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Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, federal courts
may not interfere with pending state court criminal prosecutions, absent some extraordinary
circumstance such as bad faith prosecution, patently unconstitutional laws, or the lack of an
adequate process in state court for protecting the rights of the accused. Younger v. Harris, 401
U.S. 37, 53-54 (1971). The Second Circuit has held that “Younger abstention is appropriate
when: 1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3)
the plaintiff has an avenue open for review of constitutional claims in the state court.” Hansel v.
Springfield, 56 F.3d 391, 393 (2d Cir. 1995), cert. denied, 516 U.S. 1012 (1995). Here, the
criminal case against Nelson is still pending, New York has an important state interest in
enforcing its criminal laws, and Nelson is free to raise his constitutional claims in the pending
criminal proceedings. Moreover, petitioner fails to show any extraordinary circumstance
justifying federal intervention in the pending state court criminal prosecution. Accordingly, to
the extent that petitioner seeks to enjoin his criminal prosecution in state court, all of these claims
arising from his pending criminal case are dismissed pursuant to Younger.
Finally, petitioner makes oblique references to two other potential civil rights
claims, his concern for his own safety in custody and the alleged injuries his mother suffered at
the time of his arrest on March 5, 2012. Neither of these claims is properly before the court.
Petitioner suggests that his status as a former NYPD officer could place him at risk in the general
population at the correctional center or, alternatively, impact the findings in his competency
evaluation. These potential concerns are too speculative to state a claim for a civil rights
violation. Petitioner has not asserted any specific threat or suggested that he is in imminent

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danger, nor has he requested any relief. To the extent that his mother, Margo Nelson, has
grounds for a civil rights lawsuit, she must file on her own behalf in the appropriate court.
CONCLUSION
For the reasons set forth above, the petition for a writ of habeas corpus is
dismissed without prejudice. As petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2).
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, 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 enter judgment, serve a copy of this Memorandum and Order on petitioner, and note
service on the docket.

Dated: Brooklyn, New York
February 19, 2014

______/s/______________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York