Pope v. Annucci
MEMORANDUM DECISION AND ORDER dated 6/20/17 that the petition is dismissed as unexhausted. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28:2253. The Court certifies pursuant to 28:1915(a) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).( Ordered by Judge Brian M. Cogan on 6/20/2017 ) *Forwarded for jgm (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against ANTHONY J. ANNUCCI, DOCCS Acting
----------------------------------------------------------COGAN, District Judge.
DECISION AND ORDER
17 Civ. 3191 (BMC)
Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his conviction
and sentence for various New York Vehicle and Traffic Law felonies and misdemeanors.
Because none of his claims are exhausted and there remain state court avenues of review that he
must pursue before he can seek federal review, the petition is dismissed without prejudice to
recommencement upon exhaustion of his claims.
Petitioner was arrested at a DWI checkpoint and found to be intoxicated with an open,
partially consumed can of beer in his vehicle. His driver’s license was under suspension at the
time because of a prior DWI conviction. He was charged with numerous counts of violating the
New York Vehicle and Traffic Law. After a jury trial, he was convicted of seven of the eight
counts, the top counts of which were Aggravated Unlicensed Operation of a Motor Vehicle in the
First Degree, N.Y. Veh. & Traf. L. § 511-3A-I, and Aggravated Driving While Intoxicated, N.Y.
Veh. & Traf. L. 1192-2A. Petitioner was sentenced on May 11, 2016, to an indeterminate
sentence of one to three years on the top counts, and lesser determinate terms on the lower
counts, to run concurrently. He was also sentenced to having his licensed revoked, an “ignition
interlock” on his car, and three years’ probation on the lower counts, plus fines on some of the
Within a week after sentencing, petitioner’s trial counsel filed a notice of appeal, and his
appeal is still pending. However, the appeal seems to be in limbo because petitioner has neither
taken action to pursue it pro se, nor requested the appointment of counsel, even though the
sentencing court advised him that he needed to do that if he wanted counsel for the appeal.
Instead of pursuing the appeal, on or about August 12, 2016, petitioner filed a motion to
set aside his sentence under N.Y. C.P.L. § 440.20 (“§ 440 motion”). Although styled as a motion
to challenge his sentence, petitioner also raised grounds challenging the validity of his
conviction, for example, that the District Attorney had failed to make a prima facie case both at
the grand jury level and at trial; that breathalyzers are not reliable; and that he could not be
convicted of the top counts because, in fact, his license was not suspended and he had no prior
DWI convictions. He challenged the legality of his sentence on various other grounds. These
sentencing challenges were largely nonsensical and, as to some of them, harmful to petitioner.
After a lengthy delay in submitting opposition papers, the District Attorney made an error
in responding to the § 440 motion. Specifically, he advised the § 440 court that no appeal had
been taken, although the District Attorney had in fact received the notice of appeal. If the § 440
court had been advised that that the direct appeal was pending, it might have deferred ruling
pending the appeal or denied the motion without prejudice to renewal after disposition of the
Notwithstanding the incorrect information about the pendency of petitioner’s direct
appeal, on June 8, 2017, the § 440 court denied most of the motion on the merits. Ironically, it
sustained one point that petitioner had raised – that the trial court had failed to impose mandatory
fines as to two of the lesser counts – and it therefore resentenced petitioner to impose those fines.
As to petitioner’s challenge to the sufficiency of the evidence, the § 440 court simply noted that
most of those grounds “were better suited for an appeal rather than his current motion to set aside
his sentence.” As to one other ground, the validity of breathalyzer results, the § 440 court held
that it had to be raised on appeal, but that “[i]n any event, the defendant’s argument is without
The habeas corpus petition in this case was filed in the United States District Court for
the Western District of New York on March 3, 2017, just over three months before the decision
on the § 440 motion. Judge Geraci of the Western District of New York transferred the petition
here because petitioner was convicted in Queens County, within the Eastern District of New
York. The petition is erroneous in one respect – petitioner is under the misimpression that his
counsel never filed a notice of appeal – and both erroneous and outdated in another respect – it
asserts that the District Attorney never responded to petitioner’s § 440 motion and that the § 440
court never decided it. The issues in the petition appear to substantially replicate the issues
raised in plaintiff’s § 440 motion, but there may also be some other issues – the petition is hard
to decipher – that are new and have not been raised in state court.
It is the most fundamental aspect of habeas corpus review that a federal court cannot
review claims of constitutional error leading to a state criminal conviction until the petitioner has
fully exhausted his right of review in state court. The requirement is set forth in 28 U.S.C.
§ 2254(d), which provides that a writ of habeas corpus “shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in state court.” “The exhaustion
requirement is not satisfied unless the federal claim has been ‘fairly presented’ to the state
courts.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982). This
includes obtaining resolution of a discretionary application for appellate review to the highest
state court which can entertain such an application. See Baldwin v. Reese, 541 U.S. 27, 29
Petitioner’s claims are unexhausted in at least two respects. First, he has failed to perfect
his direct appeal from his judgment and sentence of conviction. A petitioner must complete the
appellate process, not only to the Appellate Division, but, if necessary, seeking leave to the New
York Court of Appeals. See Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005); see also id. at
74 (“In New York, to invoke one complete round of the State’s established appellate review
process, a criminal defendant must first appeal his or her conviction to the Appellate Division,
and then must seek further review of that conviction by applying to the Court of Appeals for a
certificate granting leave to appeal.” (internal quotation marks and citation omitted)). Second,
petitioner has failed to seek leave to appeal the § 440 court’s denial of his motion, which is also
required to exhaust any claims raised in a collateral proceeding. See Burnett v. Lee, No. 13-CV4425, 2015 WL 4389888, at *10 (E.D.N.Y. July 15, 2015).
This is not a situation where the Court needs to stay the petition pending exhaustion to
prevent expiration of the one-year period in which to seek habeas corpus relief set forth in
Rhines v. Weber, 544 U.S. 269, 278 (2005). See 28 U.S.C. § 2244(d)(1). It is not even clear that
petitioner’s conviction is final, since his direct appeal is still pending, so the one year period may
not have even have commenced. Even if petitioner’s conviction was final, petitioner obtained a
statutory toll of the time to commence this proceeding when he sought § 440 relief in August,
2016. See Carey v. Saffold, 536 U.S. 214, 220 (2002) (“[A]n application is pending [for
AEDPA tolling purposes] as long as the ordinary state collateral review process is ‘in
continuance’ – i.e., ‘until the completion of’ that process.”). Petitioner can return to state court,
exhaust his claims, and, if it is still necessary, he should have adequate time to seek federal
habeas corpus relief.
The petition is dismissed as unexhausted. The Clerk is directed to enter judgment
accordingly. 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. The Court certifies
pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Digitally signed by Brian
Dated: Brooklyn, New York
June 20, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?