King v. Demarco

Filing 3

MEMORANDUM AND ORDER DISMISSING CASE - The Court sua sponte dismisses the Petition without prejudice. Within sixty (60) days of this Order, Petitioner may file an Amended Petition. If Petitioner fails to file such an Amended Petition within sixty days, the Court will direct the Clerk of the Court to close this case. Certificate of Appealability Denied Re: 1 Petition for Writ of Habeas Corpus. So Ordered by Judge Joanna Seybert on 4/28/11. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
NIDAMARK KING,
Petitioner,

MEMORANDUM & ORDER
11-CV-2000 (JS)

-againstVINCENT F. DEMARCO, SHERIFF OF
SUFFOLK COUNTY, ET AL.,
Respondent.
----------------------------------X
APPEARANCES:
For Petitioner:
Nidamark King, pro se
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
For Respondent:

No appearances.

SEYBERT, District Judge:
Nidamark King, pro se, petitions for a writ of habeas
corpus under 28 U.S.C. §§ 2241, 2254.
King

alleges

that

the

photo

array

Among other things, Mr.
shown

to

a

witness

was

impermissibly suggestive.
Mr. King may have a cognizable habeas corpus claim.
But

the

things,

Court
Mr.

cannot

King

does

tell

from

not

plead

his

Petition.

when

his

Among

conviction

other
became

final, or when the state courts denied post-conviction motions
that he may have filed.

Indeed, from Mr. King’s Petition, the

Court cannot even determine if he has been convicted, or if he
is just in jail pending trial, having failed to meet bail.

See

Pet. ¶ 2 (“the applicant is in jail, due to the State action

he’s attacking”).

Consequently, based on Mr. King’s Petition,

the Court cannot tell whether his Petition is either timely or
ripe.

See 28 U.S.C. § 2244(d) (providing a one year deadline

for filing a § 2254 claim, subject to tolling during “properly
filed application for State post-conviction or other collateral
review”).
Similarly, it is unclear, at best, if Mr. King has
exhausted state court remedies.

In this regard, the Court notes

that, although Mr. King claims to have filed “a writ of habeas
corpus to the State Court,” the actual document that he refers
to (Pet. Ex. A) is a pre-trial suppression motion submitted to
the trial court.1

And, although submitting this motion to the

trial court, Mr. King has not alleged any facts suggesting that
he “present[ed] the essential factual and legal premises of his
federal constitutional claim to the highest state court capable
of reviewing it.”

Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir.

2003).
In short, Mr. King has not pled sufficient facts to
enable

the

Court

to

either

dismiss

his

§

2254

impose the burden on Respondent of answering it.
the

Court

sua

sponte

dismisses

1

it

without

Petition,

or

Consequently,

prejudice.

See

Mr. King also claims to have filed a “motion.”
But the
document he refers to in this context (Pet. Ex. B.) is not a
motion.
Instead, it could best be described as a Declaration
from two individuals: a “Jeehan Diab,” and a second person with
an indecipherable signature.
2

Coppedge v. DeMarco, 11-CV-0455, 2011 WL 809438, at *1 (E.D.N.Y.
Feb. 25, 2011) (sua sponte dismissing for failure to exhaust
state court remedies).
The defects in Mr. King’s Petition may, however, be
only technical, not substantive.
this case.
re-plead.

So the Court will not close

Instead, the Court will give Mr. King the chance to
Within sixty (60) days of this Order, Mr. King may

file an Amended Petition.

This Amended Petition should set

forth, in significantly greater detail, the procedural history
of

Mr.

King’s

prosecution,

conviction

(if

any), and post-conviction motions (if any).

any),

appeals

(if

If Mr. King fails

to file such an Amended Petition within sixty days, the Court
will direct the Clerk of the Court to close this case.
If Mr. King declines to file an Amended Petition and,
instead, attempts to appeal, the Court sets forth that it will
not issue a Certificate of Appealability pursuant to 28 U.S.C.
253(c)(1).

For, pursuant to 28 U.S.C. 1915(a)(3), the Court

certifies that any appeal from this Order would not be taken in
good faith.

Coppedge v. United States, 369 U.S. 438, 444-45, 82

S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

April 28 , 2011
Central Islip, New York
3