Safran v. Sheriff of Suffolk County

Filing 11

ORDER granting 7 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, the instant action under § 2254 is dismissed without prejudice to petitioner's right to file a future petition pursuant § 2254 after he fully exhausts his state court remedies. The Clerk of the Court is instructed to enter judgment accordingly and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/1/2011. (Nagiel, Svetlana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-2197 (JFB)
_____________________

DAVID J. SAFRAN,
Petitioner,
VERSUS

SHERIFF OF SUFFOLK COUNTY,
Respondent.

___________________
MEMORANDUM AND ORDER
July 1, 2011
___________________

JOSEPH F. BIANCO, District Judge:
Pro se petitioner David J. Safran
(“petitioner” or “Safran”) brings this action
pursuant to 28 U.S.C. § 22541, seeking his
release from custody. For the reasons set
forth below, the petition is dismissed
without prejudice.

1

Petitioner filed his petitioner for habeas relief
under “28 USC 2241-2254.”
(Pet. at 1.)
However, petitions under § 2241 are “reserved
for challenges to the execution of a federal
prisoner’s sentence.” Zuniga v. Sposato, No. 11CV-1045 (JFB), 2011 WL 1336396, at *2
(E.D.N.Y. Apr. 7, 2011). Thus, § 2241 is clearly
inapplicable here since petitioner is to be tried in
state court and concedes that he has not been
convicted or sentenced yet.

I. BACKGROUND
In the instant petition, which petitioner
filed pro se on May 3, 2011, Safran argues
that he is being unlawfully detained and, as
such, he seeks a writ of habeas corpus
ordering his release. Specifically, petitioner
raises six grounds for his release, namely:
(1) his arrest was based on an “illegal search
and seizure” (Pet. at 1); (2) there was no
probable cause for his arrest (Pet’rs May 19
Reply Letter at 1); (3) he was wrongfully
denied access to the grand jury (Id. at 1, 3);
(4) his counsel was ineffective in failing to
prevent his being indicted by the grand jury
(Id. at 2); (5) he was wrongfully denied the
right to proceed pro se (Pet’rs May 19 Reply
Letter at 2); and (6) he was unlawfully
incarcerated for a crime that “amount[s] to a
Traffic Infraction” (Pet. at 2). On February
7, 2011, Safran was arrested for the illegal
possession of forged license plates and, on

February 8, 2011, he was charged with
criminal possession of a forged instrument
and with resisting arrest. (Aff. of Michael
Blakey ¶ 3 (“Blakey Aff.”).)2 Petitioner was
arraigned and held on bail or bond.
Petitioner was subsequently indicted on
February 15, 2011, before a grand jury, and
was once again held on bail or bond. (Id. ¶
4.) Subsequent to the indictment filed in
County Court, Suffolk County, various
motions had been brought to the attention of
the state court judge before whom petitioner
will be tried. (Id. ¶¶ 5-6.) Although
petitioner raised a number of claims with
respect to the criminal process initiated
against him, nowhere does he allege that he
has been tried and convicted. In fact, he
states in his petition that “an unlawful trial
[had] not yet” taken place. (Pet. at 2.)
Petitioner’s trial is, at this time, scheduled
for August 2011. (Blakey Aff. ¶ 7.)

custody in violation of the Constitution or
laws or treaties of the United States.”
Moreover, a district court shall not review a
habeas petition unless “the applicant has
exhausted the remedies available in the
courts of the state.”3
28 U.S.C. §
2254(b)(1)(A). Although a state prisoner
need not petition for certiorari to the United
States Supreme Court to exhaust his claims,
see Lawrence v. Florida, 549 U.S. 327, 333
(2007), petitioner must fairly present his
federal constitutional claims to the highest
state court having jurisdiction over them.
See Daye v. Attorney Gen. of N.Y., 696 F.2d
186, 191 n. 3 (2d Cir. 1982) (en banc).
Exhaustion of state remedies requires that a
petitioner “fairly present federal claims to
the state courts in order to give the State the
opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.”
Duncan v. Henry, 513 U.S. 364, 365 (1995)
(quotation marks omitted) (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971)).
However, “it is not sufficient merely that the
federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
On the contrary, to provide the State with
the necessary “opportunity,” the prisoner
must “fairly present” his claim in each
appropriate state court (including a state’s
highest court with powers of discretionary
review), alerting that court to the federal
nature of the claim and “giv[ing] the state
courts one full opportunity to resolve any
constitutional issues by invoking one
complete round of the State’s established

On May 13, 2011, respondent requested
leave to file a motion to dismiss the petition
for failure to exhaust. The Court issued an
Order dated May 16, 2011, setting a briefing
schedule for the motion.
Petitioner
submitted a letter, dated May 19, 2011, in
reply to respondent’s letter requesting to file
the motion to dismiss. Respondent filed his
brief on May 19, 2011. Petitioner filed his
opposition letter on June 29, 2011. The
Court has carefully considered the
submissions and arguments of the parties.
II. DISCUSSION
According to 28 U.S.C. § 2254, this
Court may “entertain an application for a
writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a
State court only on the ground that he is in

3

An exception to the exhaustion rule exists, if
“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(b)(1)(B)(i), (ii).
Here, there is no evidence that there is an
absence of available state corrective process, nor
is there any evidence that circumstances exist in
state court that render such process ineffective to
protect petitioner’s rights. In fact, petitioner is
scheduled for trial in August 2011.

2

Petitioner does not provide the background
facts of his case. Consequently, the Court cites
to the respondent’s papers.
2

appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365-66.

Clerk of the Court is instructed to enter
judgment accordingly and close this case.
The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this
Memorandum and Order would not be taken
in good faith and, therefore, in forma
pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).

Here, it is apparent that petitioner has not
been convicted yet, as he himself admits in
his petition (Pet. at 2), so that petitioner is
not in custody pursuant to a state court
judgment of conviction. Nor does petitioner
allege that he has exhausted his state court
remedies. In other words, petitioner has not
presented his federal constitutional claims to
the highest state court. Accordingly, the
Court concludes that petitioner fails to state
a claim upon which relief may be granted
under § 2254, and, thus, the petition is
dismissed without prejudice as premature.
See, e.g., Haynes v. Fiorella, No. 10-cv0843S(F), 2010 WL 4365832, at *1
(W.D.N.Y. Nov. 3, 2010) (“Since it is clear
from the face of the petition that petitioner’s
criminal case is still pending, she is not in
custody pursuant to a state court conviction
and she has not exhausted her available state
court remedies.”); Bolar v. Pilgrim State
Psychiatric Hosp., No. 07-CV-5445 (NG),
2008 WL 2051029, at *2 (E.D.N.Y. May 13,
2008) (“It is clear that she has not yet been
convicted of the offense with which she is
charged and that she has not exhausted her
state court remedies, both of which are
necessary to filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §
2254.”)

SO ORDERED
_______________________
JOSEPH F. BIANCO
United States District Judge
Date: July 1, 2011
Brooklyn, NY

***
Petitioner is proceeding pro se. Respondent
is represented on behalf of Thomas J. Spota,
District Attorney of Suffolk County by:
Michael Herman Blakey, Esq., District
Attorney’s Office of Suffolk County,
Criminal Court Building, 200 Center Drive,
Riverhead, New York, 11901.

III. CONCLUSION
For the foregoing reasons, the instant
action under § 2254 is dismissed without
prejudice to petitioner’s right to file a future
petition pursuant § 2254 after he fully
exhausts his state court remedies.4 The

opportunity to file timely a § 2254 habeas
petition setting forth his claims once he has
exhausted his state-court remedies. See Rhines
v. Weber, 544 U.S. 269, 276-78 (2005).
Moreover, since his petition is being denied
without prejudice for failure to exhaust state
remedies, a future petition after exhaustion of
such remedies would not be considered “second
or successive.” See Camarano v. Irvin, 98 F.3d
44, 46 (2d Cir. 1996).

4

The Court notes that the dismissal of this
petition will not unduly prejudice petitioner
because, based upon the information set forth in
his petition, it appears that he will have ample
3