Goodman v. Warden

Filing 11

MEMORANDUM AND ORDER, In line with the foregoing, petitioner's 7 Motion to Stay and abeyance is denied and his petition is dismissed in its entirety without prejudice. Since petitioner has not made a substantial showing of the denial of a consti tutional right, a Certificate of Appealability shall not issue. (Certificate of Appealability Denied re: 1 Petition for Writ of Habeas Corpus) The Court certifies, pursuant to 28 USC sec. 1915(a)(3), that any appeal would not be taken in good fa ith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to mail a copy of this Order to the pro se petitioner forthwith, to enter judgment accordingly, and to close this case. (Ordered by Judge Eric N. Vitaliano on 9/15/2017) c/m Fwd. for Judgment. (Galeano, Sonia)

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DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

SEP~2017

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JAMES GOODMAN,

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BROOKLVN OFFICE
Petitioner,
MEMORAN DUM & ORDER
-against17-cv-3485 (ENV)

WARDEN,
Respondent.
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VIT ALIANO, DJ.
On June 8, 20 17 ,pro se petitioner James Goodman commenced this acti on seeking a writ
of habeas corpus, pursuant to 28 U.S.C. § 2254. See ECF Dkt. No. l. Subsequently, on July 3 1,
2017 , he filed a letter-motion requesting that the Court stay this action and hold his petition in
abeyance pending resolution of a still-pending moti on fo r a writ of erro r coram nobis that he
fil ed, on March 8, 201 7, in the Appellate Division, Second Department. See ECF Dkt. No. 7.
For the foll owing reasons, Goodman' s motion for stay and abeyance is denied and hi s petition is
dismissed without prejudice.
Discussion

It seems clear that ce1tain claims in Goodman 's habeas petition have not yet been
exhausted in state court- specifically, those concerning the purported ineffective assistance of
hi s appellate counsel, which, he explains, he has presented to the Second Department by way of
motion fo r a writ of error coram nobis. See ECF Dkt. No. 1 at 16-1 7; see also ECF Dkt. No. 7.
Where, as here, a district court is confronted with a petition containing an amalgamation of
ex hausted and unexhausted claims-a so-called " mixed petition" -the court has four options:
" ( I ) dismi ss the petiti on in its entirety without prejudice; (2) deny the entire peti tion on the

meri ts; (3) allow the petitioner to delete the unexhausted claims and proceed with his exhausted

claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his
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unexhausted claims." Francois v. Warden ofSullivan Corr. Facility, No. 12-cv-5333, 201f i~
1153920, at *4 (E.D.N.Y. Mar. 19, 2014) ("Francois f'). Because Goodman has requested stay
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and abeyance, the Court will evaluate that option first.

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It is well settled that a motion for stay and abeyance of habeas proceedings is addr1sfe1

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to the sound discretion of the district court. See Rhines v. Weber, 544 U.S. 269, 276, 125

1528, 1534, 161 L. Ed. 2d 440 (2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 254, 57 ISr Qt.
163, 166, 81L.Ed.153 (1936) & Clinton v. Jones, 520 U.S. 681, 706, 117 S. Ct. 1636,

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137 L. Ed. 2d 945 (1997)). Even when viewed through the prism of the Antiterrorism and . ,
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Effective Death Penalty Act of 1996 ("AEDPA"), that legal sea change did not deprive diftrit
courts of their discretion to stay habeas proceedings, although it did circumscribe it. See id
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Under AEDP A, "stay and abeyance" is appropriate only if (1) the unexhausted claims are not
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"plainly meritless" and (2) "there [is] good cause for the petitioner's failure to exhaust his clru..·ms
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first in state court." Id. at 277. Additionally, stay and abeyance will not be granted if there iJ:
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any indication that the "petitioner engaged in intentionally dilatory litigation tactics." Allen .
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New York, No. 13-cv-0991, 2016 WL 5928817, at *4 (W.D.N.Y. Oct. 12, 2016).
As for the merits of Goodman's unexhausted claims of ineffective assistance of app~llate
counsel, the Court cannot conclude, at this juncture, that they are "plainly meritless," su9h, tjt it
would be inappropriate to stay this action pending their exhaustion. Rhines, 544 U.S. at 277; see
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Devaughn v. Graham, No. 14-cv-2322, 2014 WL 1653277, at *l (E.D.N.Y. Apr. 24, 2014)
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(granting stay and abeyance where the court could not conclude "[o]n the face of the pet~tio~ ...
that Petitioner's [unexhausted claim of] ineffective assistance of appellate counsel is withou
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merit"); Schouenborg v. Superintendent, Auburn Corr. Facility, No. 08-cv-2865, 2013

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5502832, at *8-9 (E.D.N.Y. Sept. 30, 2013) (granting stay and abeyance so that petitioner could
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exhaust his "potentially meritorious" unexhausted claim "that appellate counsel was ineffective
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because he did not raise the potential ineffectiveness of trial counsel"); see generally Lynch !v.

Dolce, 789 F.3d 303, 311 (2d Cir. 2015) ("a petitioner may establish constitutionally inad,~u~te
performance [of appellate counsel] if he shows that counsel omitted significant and obviotls:
issues while pursuing issues that were clearly and significantly weaker" (alteration in origr,al)
(quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994))). At the same time, thoug4,

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because Goodman's bare-bones letter-motion does not describe, in any way, the requisite rgood
cause" for his failure to exhaust these claims earlier, his motion for stay and abeyance canm;>t be
granted. It should be noted, moreover, that there does not appear to be any obvious need for a
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stay, since Goodman has a coram nob is application currently pending before the Second

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Department, which, as discussed in more detail below, has the effect of tolling the statute of
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limitations for his filing of a federal habeas petition compliant with AEDPA's one-year

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limitations period to the extent, at least, that his motion is compliant. See Francois I, at *4~
With stay-and-abeyance forced off the table by the insufficiency of the instant
application, only three viable alternate courses of action remain. See id. at *4. The firstI

outright, final dismissal-would be premature and inappropriate under these circumstanc~s,
since, as previewed earlier, it cannot be said, at this stage, that Goodman's unexhausted claims
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are plainly meritless. See id. As a result, only two options remain: to dismiss the petitior 1in!its
entirety without prejudice, or to allow Goodman to delete the unexhausted claims and to p~oceed
with those that have been exhausted. See id. In this litigation posture, a court "should al~o:w ~he
Petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismiksal

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of the entire petition would unreasonably impair the petitioner's right to obtain federal r9Ii!efr

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Rhines, 544 U.S. at 278. Whether the opportunity to seek vindication of federal constitutional

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rights in a federal habeas proceeding would be unreasonably impaired is principally info~9d

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whether AEDPA's limitations period already has expired or will do so shortly. See Francoif Jr at
*4.
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With respect to a § 2254 petition, the one-year limitations clock begins to run "from 1the
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latest of' four specific times. See 28 U.S.C. § 2244(d}(l). Here, the relevant milestone is j"th~

date on which the judgment became final by conclusion of direct review or the expiration of die
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time for seeking such review." 28 U.S.C. § 2244(d)(l)(A). The controlling AEDPA provisio~
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contains two branches, each of which covers a different petitioner class. See Gonzalez v. Tha~er,
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565 U.S. 134, 150, 132 S. Ct. 641, 653, 181L.Ed.2d 619 (2012). For those "who pursuel direct
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review all the way to [the United States Supreme] Court, the judgment becomes final ... wher
[that] Court affirms a conviction on the merits or denies a petition for certiorari." Id.

"Fo~ all
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other petitioners, the judgment becomes final at the 'expiration of time for seeking [direct]
review'-when the time for pursuing direct review in [the Supreme] Court, or in state coJrt,

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expires." Id. Thus, where, as here, the petitioner has timely sought direct review before the

state's highest court but not before the United States Supreme Court, his "conviction [bec~~1
final when 'the time for filing a certiorari petition expire[d]."' Jimenez v. Quarterman, 555 U.S.
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5~7 ~.S.
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113, 119, 129 S. Ct. 681, 685, 172 L. Ed. 2d 475 (2009}(quoting Clay v. United States,

522, 527, 123 S. Ct. 1072, 1076, 155 L. Ed. 2d 88 (2003)). Barring any extensions granted by
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the Supreme Court, certiorari petitions are due 90 days after the final decision of the statd'

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highest court or, as relevant here, the entry of an order denying discretionary review before Jew
York's Court of Appeals. See Sup. Ct. R. 13 .1 ("A petition for a writ of certiorari

seekin~

review of a judgment of a lower state court that is subject to discretionary review by the ~tatl
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court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order
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denying discretionary review."); see also N.Y. Crim. Proc. Law§ 460.20 (a certificate ofl~avJ

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to appeal to the Court of Appeals can be obtained from either ajudge of the Court of Appf\s
a justice of the Appellate Division in the department that heard the appeal).
When compliance with a limitations period is in the cross hairs, naturally, a precis~ ;

recounting of the filing history is essential. In this case, a comprehensive recounting indij*sl
that, on February 5, 2016, Goodman's application for leave to appeal to the New York State ·
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Court of Appeals was denied by the Second Department. See People v. Goodman, No. 20fl ~ I

02343, 2016 N.Y. Slip Op. 63542(U), 2016 WL 462220 (N.Y. App. Div., 2d Dep't Feb. 5,
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2016). Since Goodman did not thereafter file a petition for certiorari to the Supreme Cowrt,1 his
conviction became final, for purposes of AEDPA, on the 90th day following that last state

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decision-which was May 5, 2016. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003).
(habeas petitioner's conviction became final 90 days after entry of order denying his appl~crti9n
for leave to appeal to the Court of Appeals, where he did not file a petition for a writ of ce11iorari
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in United States Supreme Court); Rhodes v. Sheahan, No. 9:13-cv-57, 2016 WL 890081, at *1 &
n.2 (N.D.N.Y. Jan. 12, 2016) (where no certiorari petition had been filed, habeas petitioner's
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conviction became final 90 days after Appellate Division denied his leave application), reppr(
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and recommendation adopted, 2016 WL 894095 (N.D.N.Y. Mar. 8, 2016); see also Davif v.
Racette, 99 F. Supp. 3d 379, 384 (E.D.N.Y. 2015). For computation purposes, then, Goodmki's
limitations clock started to tick on May 5, 2016 and, absent tolling, would have expired tjnl May

5, 2017.
The record is silent as to the the date on which Goodman delivered his coram nobis

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motion to prison authorities to be mailed to the Second Department for filing, an event wrhicT by

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virtue of the "prison mailbox rule," would have triggered the tolling provision of§ 2244(d)(2)l
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See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) ("There ... is no dispute that
[petitioner's] state coram nobis petition, if pending within that one-year grace period, wolfld
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trigger Section 2244(d)(2)'s tolling allowance."); Fernandez v. Artuz, 402 F.3d 111, 114 (2d Cir.
2005) (coram nobis motion "properly filed" on date that it was placed in prison mailbox, f~ther
than when it was received by court); see also Blair v. Heath, No. 12-cv-1001, 2013 WL
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5988934, at *2 (S.D.N.Y. Nov. 8, 2013). What the record does reveal, though, is that

Good~an
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cannot have mailed his coram nobis motion any later than March 8, 2017, since, on that d;ay, tt
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was received by the Appellate Division. See ECF Dkt. No. 7 at 2. Accordingly, the one-year,
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limitations period was tolled no later than March 8, 2017-which is 307 days after it had begpn

to run, meaning that at least 58 days remained on the clock, at that point. Moreover, sincf

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Goodman's coram nob is motion is still pending before the Second Department, see id. at I, his
one-year clock has, at the very least, 58 days left to tick, see Francois I, at *4.
Furthermore, in the event that the Second Department denies Goodman's coram nobis
motion, his one-year clock will remain tolled with no fewer than 58 days remaining on it, unjlil
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either: (a) if Goodman seeks leave to appeal any such denial of his coram nob is motion tot e
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Court of Appeals, upon final resolution of his motion; or (b) if Goodman does not seek leave! to
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appeal, upon expiration of the period within which he could have sought such leave. See

Francois v. Warden ofSullivan Corr. Facility, No. 12-cv-5333, 2016 WL 4435215, at *4
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(E.D.N.Y. Aug. 19, 2016) ("Francois If'); see also id. ("[W]hile the AEDPA statute of ·
limitations is tolled during the pendency of a coram nobis petition, it continues to run o~c~ *e
petition is 'finally disposed of and further appellate review is unavailable under the particul~
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state's procedures."' (quoting Walker v. Graham, 955 F. Supp. 2d 92, 101 (E.D.N.Y. 20U))~.
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Notably, if, as Goodman indicates in his letter-motion seeking stay and abeyance, he

inten~s t,
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fully exhaust the claims described in his coram nob is motion, then, if that motion is denied by'
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the Appellate Division, he must timely seek leave to appeal to the Court of Appeals. See id.: ('Un
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order to exhaust on-the-record claims through a coram nobis adjudication, a petitioner must al~o
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seek leave to appeal to the Court of Appeals." (citation omitted)); Hawkins v. Lape, No. 01-cvll
2669, 2009 WL 890549, at *4 (E.D.N.Y. Mar. 30, 2009) (failure to seek leave to appeal frp~ he
Appellate Division's denial of a coram nobis motion leaves the claims therein unexhausted).
On this calendar, then, ifthe Court were to dismiss Goodman's federal habeas pet~tifnl
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without prejudice to re-filing, he would still have no fewer than 58 days following the final!
resolution of his coram nob is motion to re-file his petition in federal court. Under these .
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circumstances, the Court finds that dismissal of the entire petition without prejudice woula pot
unduly burden his right to seek federal habeas relief. See Francois/, at *4 (where federal haqeas
petitioner had coram nob is motion pending in state court, "dismissal of the entire petitionl'Yo':lld
not unreasonably impair [his] right to obtain federal relief at a later date" (citing 28 U.S.C. §
2244(d)(2)) ). Accordingly, in the exercise of sound discretion, Goodman's petition shall be
dismissed without prejudice to filing, at the appropriate time, a new petition asserting ful1y
exhausted claims. See Rhines, 544 U.S. at 278; Francois I, at *4. It will be solely Goodman:s
burden to keep watch on his one-year clock, and to return to federal court in a timely fasHicm i
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after resolution of his state coram nob is petition, which will, presumably, exhaust all of hi~
remaining claims.
Conclusion
In line with the foregoing, petitioner's motion for stay and abeyance is denied and hiJ
petition is dismissed in its entirety without prejudice.

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/S/ USDJ ERIC N. VITALIANO