Murdock v. Sposato

Filing 15

MEMORANDUM & ORDER denying 12 Motion to Dismiss; For the foregoing reasons, Respondent's motion to dismiss the Petition pursuant to Federal Rule 12(b) (Docket Entry 12) is DENIED. Respondent may submit, within thirty (30) days from the date of this Memorandum and Order a renewed motion to dismiss. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner. So Ordered by Judge Joanna Seybert on 9/8/2015. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
EDDIE MURDOCK,
Petitioner,
-against-

MEMORANDUM & ORDER
14-CV-2931(JS)

MICHAEL J. SPOSATO, Sheriff of
Nassau County,
Respondent.
------------------------------------X
APPEARANCES
For Petitioner:
Eddie Murdock, pro se
13003401
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 115541
For Respondent:

Cristin N. Connell, Esq.
Nassau County District Attorney’s Office
262 Old Country Road
Mineola, NY 11501

SEYBERT, District Judge:
On May 1, 2014, incarcerated pro se petitioner Eddie
Murdock (“Petitioner”) filed a Petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (the “Petition”).
Docket Entry 1.)

(Pet.,

On October 8, 2014, respondent Michael J.

Sposato (“Respondent”) moved to dismiss the Petition pursuant to

The Court reminds the pro se Petitioner that if his mailing
address changes, he must promptly notify the Clerk of the Court
and Respondent of that change. See Concepcion v. Ross, No. 92CV–0770, 1997 WL 777943, at *1 (E.D.N.Y. Oct. 27, 1997); see
also Handlin v. Garvey, No. 91–CV–6777, 1996 WL 673823, at *5
(S.D.N.Y. Nov. 20, 1996) (explaining that the duty to inform the
court and defendant of a current address is “an obligation that
rests with all pro se plaintiffs”).
1

Federal Rule of Civil Procedure 12(b).

(Docket Entry 12.)

For

the following reasons, Respondent’s motion is DENIED, with leave
to renew.
BACKGROUND
Petitioner, a former pre-trial detainee at the Nassau
County Correctional Facility, challenges the constitutionality
of

his

detention,

claiming

that

his

state-appointed

attorney

made an unauthorized waiver of Petitioner’s right to a speedy
trial.

(Pet.

at

2-3.

2

)

Petitioner

claims

that,

shortly

following his arrest on May 6, 2013 for criminal possession of
stolen property, Petitioner’s state appointed counsel approached
him with a waiver of rights form.

(Pet. at 2.)

Petitioner

further alleges that he refused to sign the form but that the
waiver was executed regardless.
contends

that

despite

making

(Pet. at 3.)
numerous

produced for several court dates.

Petitioner also

demands,

he

(Pet. at 3.)

was

not

Petitioner

sought to have his habeas corpus claim heard by the Appellate
Division

and

Court

of

Appeals

declined to hear his case.

in

New

York

(Pet. at 3-4.)

State,

but

both

According to state

court records, Petitioner was convicted at trial in April 2015
and was released from prison in June 2015.

Page numbers of the Petition referenced herein refer to the
page numbers generated by the Electronic Case Filing system.
2

DISCUSSION
Petitioner

filed

his

claim

under

28

U.S.C.

§ 2241.

However, due to Petitioner’s conviction in state court and later
release
under

from
28

prison,
U.S.C.

his

claim

now

§ 2254.

“application[s] . . . in

more

appropriately

Section

behalf

2254

of . . . a

falls

applies

person

in

to

custody

pursuant to the judgment of a State court . . . on the ground
that [the person applying] is in custody in violation of the
Constitution . . . of the United States.”

28 U.S.C. § 2254(a).

The Second Circuit has held that “if an application that should
be brought under 28 U.S.C. § 2254 [was] mislabeled as a petition
under

section

2241,

the

district

section 2254 application instead.”

court

must

treat

it

as

a

Cook v. N.Y. State Div. of

People, 321 F.3d 274, 277 (2d Cir. 2003) (citing James v. Walsh,
308 F.3d 162, 166 (2d Cir. 2002)).

Therefore, the Court will

treat Petitioner’s claim as a section 2254 application, rather
than a section 2241 application.
Respondent’s motion to dismiss was filed on October 8,
2014,

before

Petitioner’s

conviction

in

state

court.

Consequently, Respondent’s motion was based on the grounds that
(1) Petitioner had not exhausted his state court remedies, and
(2) pursuant to Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746,
27

L.

Ed.

2d

669

(1971),

this

Court

should

abstain

interfering with a pending state criminal prosecution.

from

Now that

Petitioner has been convicted, however, those grounds are--at
least based on the current record--inapplicable.
Respondent’s motion is DENIED AS MOOT.

Accordingly,

Respondent is directed

to, within thirty (30) days of the date of this Memorandum &
Order, show cause why a writ of habeas corpus should not be
issued.
CONCLUSION
For
dismiss

the

the

foregoing

Petition

Entry 12) is DENIED.

reasons,

pursuant

to

Respondent’s

Federal

Rule

motion

12(b)

to

(Docket

Respondent may submit, within thirty (30)

days from the date of this Memorandum and Order a renewed motion
to dismiss.

The Clerk of the Court is directed to mail a copy

of this Memorandum and Order to the pro se Petitioner.

SO ORDERED

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Date:

September
8 , 2015
Central Islip, New York