Johnson v. Duffy et al

Filing 11

ORDER DISMISSING CASE for the reasons set forth in the attached Memorandum and Order. The Clerk of Court shall mail a copy of this Memorandum and Order, and the accompanying Judgment, to petitioner and note the mailing on the docket. 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 that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. Ordered by Judge Roslynn R. Mauskopf on 7/3/2014. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
ROHAN ANTHONY JOHNSON,
Petitioner,

MEMORANDUM AND ORDER
14-CV-2220 (RRM)

- against WARDEN EDWARD DUFFY AND NYS
ATTORNEY GENERAL ERIC
SCHNEIDERMAN,
Respondents.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.

On April 8, 2014, petitioner Rohan Anthony Johnson (“Johnson”), currently incarcerated
at the Vernon C. Bain Center at Rikers Island, filed the instant petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his ongoing criminal action in Queens County
Supreme Court. Because Johnson has neither been convicted nor sentenced, the Court dismisses
the petition without prejudice as premature.
DISCUSSION
In order to bring a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, a
petitioner must first be in custody pursuant to a state court judgment, and must exhaust the
remedies available in the state court or show 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(a), (b)(1)(B)(i)–(ii). To meet the exhaustion
requirement, federal claims must be initially presented to the highest state court. See Picard v.
Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General, 696 F.2d 186, 190–92 (2d Cir.
1982). Johnson, who was arrested in the pending criminal case on March 19, 2014, is not in
custody pursuant to a state court judgment, much less could he have exhausted his state court

remedies.1 Because Johnson has failed to satisfy either of these prerequisites under § 2254, the
instant petition is premature and is dismissed without prejudice. See Holmes v. Demarco, No.
13-CV-0401 (SJF), 2013 WL 2154882, at *2 (E.D.N.Y. May 14, 2013) (habeas petition must be
dismissed as premature where petitioner has neither been convicted nor exhausted state court
remedies); Johnson v. New York, No. 11-CV-2237 (RRM), 2011 WL 1933726, at *1 (E.D.N.Y.
May 18, 2011) (same); Williams v. Horn, No. 06-CV-3068, 2006 WL 2333874 (BMC), at *1
(E.D.N.Y. Aug. 9, 2006) (“[B]ecause the criminal proceedings are ongoing, there has been no
judgment or adjudication on the merits of petitioner’s claims and therefore, this § 2254 petition is
premature”).2
CONCLUSION
The petition for a writ of habeas corpus is dismissed without prejudice as premature. 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 that, pursuant to
1

According to the New York City Department of Correction Inmate Lookup Service, Johnson has been charged by
indictment with second-degree grand larceny. His next court date (in Queens County Supreme Court) is on June 23,
2014.
2

Petitioner is advised that the Antiterrorism and Effective Death Penalty Act of 1996 provides a one-year statute of
limitations for seeking federal habeas corpus review, which runs from the date a conviction is made final, as
follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation
of the Constitution or laws of the United States is removed, if the applicant was prevented from
filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
28 U.S.C. § 2244(d).

2

28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court shall mail a copy of this Memorandum and Order, and the
accompanying Judgment, to petitioner and note the mailing on the docket.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
July 3, 2014

__________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

3