Harris v. Suffolk County et al

Filing 4

MEMORANDUM & ORDER - For the reasons set forth above, the Petition for a Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE as it is both premature and unexhausted. Petitioner's request regarding his "Notice of Preventive Injunction" is DISMISSED AS MOOT. 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 Clerk of Court is directed to mail a copy of this Ord er, along with an Eastern District of New York Civil Rights complaint form, to the Petitioner. The Clerk of the Court is directed to CLOSE the case. Certificate of Appealability Denied Re: 1 Petition for Writ of Habeas Corpus. So Ordered by Judge Joanna Seybert on 9/13/2013. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
CHRISTOPHER J. HARRIS,
Petitioner,
-against-

MEMORANDUM & ORDER
13-CV-4243(JS)

SUFFOLK COUNTY; SUFFOLK COUNTY
DISTRICT COURT, FIRST DISTRICT;
THOMAS J. SPOTA, District
Attorney’s Office for Suffolk
County; CHARLES EWALD, Warden of
Suffolk County Jail; and VINCENT
F. DEMARCO, Sheriff of Suffolk
County;
Respondents.
----------------------------------X
APPEARANCES
For Petitioner:
Christopher J. Harris, pro se
21 Pinetop Drive
Central Islip, NY 11722
For Respondents:

No Appearance

SEYBERT, District Judge:
On July 26, 2013, pro se Petitioner Christopher Harris
(“Petitioner”) filed a Petition for a Writ of Habeas Corpus (the
“Petition”) pursuant to 28 U.S.C. § 2254 seeking to challenge his
on-going criminal actions pending in the Nassau County District
Court.

The Petition was accompanied by the $5.00 filing fee.
In addition, on August 30, 2013, Petitioner filed a

“Notice of Preventive Injunction” with the Court requesting that
this Court amend his Petition to consider an annexed motion filed
by Petitioner in state court.

(Docket Entry 3.)

However, because Petitioner is a pre-trial detainee, the
Petition is sua

sponte

DISMISSED without prejudice as it is

premature.
request

As the Petition is herewith dismissed, Petitioner’s

regarding

his

“Notice

of

Preventive

Injunction”

is

DISMISSED AS MOOT.
Petitioner is challenging five separate incidents, each
assigned its own state court case number.

In each of the case

numbers 2011SU034396S, 2011SU04085S, and 2011SU045473S, Petitioner
was issued a Uniform Traffic Ticket.1

In cases 2012SU025031 and

2012SU025032 Petitioner was arrested on April 25, 2012.2

In case

2012SU025031, Petitioner was charged with driving an uninspected
vehicle, operation of a motor vehicle by an unlicensed driver, and
aggravated operation of a vehicle by an unlicensed driver.3

In

case 2012 SU025032, Petitioner was charged with unlawful possession
of marijuana.4

Petitioner has not yet been tried on these charges.

Although it is difficult for the Court to discern the basis for his
Petition, it seems that the gravamen of Petitioner’s claim is that
he was denied due process by the state courts.

(Pet. ¶¶ 5, 8, 11-

1

See N.Y.S. Unified Court System, WebCrims, Case DetailsAppearances, available at http://iapps.courts.state.ny.us/webcrim
(last visited July 31, 2013).

2

See N.Y.S. Unified Court System, WebCrims, Case Details-Summary,
available at http://iapps.courts.state.ny.us/webcrim (last visited
July 31, 2013).

3

See N.Y.S. Unified Court System, WebCrims, and Case DetailsCharges, available at http://iapps.courts.state.ny.us/webcrim (last
visited July 31, 2013).

4

See N.Y.S. Unified Court System, WebCrims, and Case DetailsCharges, available at http://iapps.courts.state.ny.us/webcrim (last
visited July 31, 2013).
2

15.)
According to the case information maintained by the New
York State Unified Court System and contrary to Petitioner’s
contention that he has been sentenced to two days imprisonment (see
Id. at ¶ 4), Petitioner has not yet been tried, convicted, or
sentenced, and in fact, all the charges remain pending against
him.5

Accordingly, for the reasons that follow, the Petition is

DISMISSED WITHOUT PREJUDICE as premature.
DISCUSSION
“A federal court only has jurisdiction to hear a petition
filed pursuant to title 28 U.S.C. section 2254 where the petitioner
is ‘in custody pursuant to the judgment of a State court.’”

Henry

v. Davis, No. 10-CV-5172, 2011 WL 319935, at *1 (E.D.N.Y. Jan. 26,
2011) (quoting 28 U.S.C. § 2254(a) (A district court “shall
entertain an application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State court only
on

the

ground

Constitution

or

that
laws

he
or

is

in

custody

treaties

of

in

the

violation
United

of

the

States.”)).

Furthermore, a district court may not grant the writ “unless the
petitioner has first exhausted the remedies available in the state
court or shows that ‘there is an absence of available state
corrective process; or circumstances exist that render such process

5

See N.Y.S. Unified Court System, WebCrims, Case Details-Summary,
available at http://iapps.courts.state.ny.us/webcrim (last visited
July 31, 2013).
3

ineffective to protect the rights of the applicant.’” Id. (quoting
28 U.S.C. §§ 2254(b)(1)(A), 2254(b)(1) (B)(i)-(ii)).

A federal

claim is properly exhausted where it has been presented to the
highest state court.

Id. (citing Picard v. Connor, 404 U.S. 270,

275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Daye v. Att’y Gen. of
N.Y., 696 F.2d 186, 190-91 (2d Cir. 1982)).
In the instant matter, because Petitioner has not yet
been tried, convicted, or sentenced, he is not in custody pursuant
to the judgment of a state court.

Moreover, Petitioner does not

allege to have appealed his constitutional claim to the highest
state court having jurisdiction. Given that Petitioner has not yet
exhausted his state court remedies nor has he been convicted or
sentenced, each of which are necessary prior to the filing of a
petition under § 2254, the Court lacks jurisdiction over the
Petition.

See 28 U.S.C. § 2254; Daye, 696 F.2d at 190-92 (a § 2254

petition is premature where petitioner has not yet been convicted
and has not exhausted state court remedies); see also Lynch v.
DeMarco, No. 11-CV-4708(JS), 2011 WL 6097737, at *2 (E.D.N.Y.
Dec. 1, 2011) (sua sponte dismissing unexhausted § 2254 petition)
(citations omitted).

Thus, the Petition for a writ of habeas

corpus is DISMISSED WITHOUT PREJUDICE as it is premature and
unexhausted.

See Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.

foll. § 2254 (if it plainly appears from the face of petition that
petitioner is not entitled to relief, the judge must dismiss the
petition).
4

In addition, a single habeas petition cannot challenge
multiple convictions, as the instant Petition does.

See Rules

Governing Section 2254 Cases, Rule 2(e), 28 U.S.C. foll. § 2254
("Separate

Petitions

for

Judgments

of

Separate

Courts.

A

petitioner who seeks relief from judgments of more than one state
court must file a separate petition covering the judgment or
judgments of each court."). Petitioner is cautioned that should he
file a proper habeas petition upon the conclusion of his state
court proceedings and appeals, he must file one petition for each
state court judgment.
To the extent that Petitioner is attempting to file an
action

premised

upon

alleged

violations

of

his

civil

rights

pursuant to 42 U.S.C. §§ 1983 and 1985, he must do so by commencing
a separate civil action alleging such violations.

A copy of the

Eastern District of New York’s Civil Rights complaint form is
enclosed herewith.

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CONCLUSION
For the reasons set forth above, the Petition for a Writ
of Habeas Corpus is DISMISSED WITHOUT PREJUDICE as it is both
premature and unexhausted.

Petitioner’s request regarding his

“Notice of Preventive Injunction” is DISMISSED AS MOOT.
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 Clerk of Court is directed to mail a copy of this
Order, along with an Eastern District of New York Civil Rights
complaint form, to the Petitioner.
The Clerk of the Court is directed to CLOSE the case.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: September
13 , 2013
Central Islip, New York

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