Murdock v. Sposato
Filing
19
MEMORANDUM & ORDER granting 17 Motion to Dismiss; For the foregoing reasons, Respondent's motion to dismiss (Docket Entry 17) is GRANTED and Petitioner's application for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/21/2016. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
EDDIE MURDOCK,
Petitioner,
MEMORANDUM & ORDER
14-CV-2931(JS)
-againstMICHAEL J. SPOSATO, Sheriff of
Nassau County,
Respondent.
-----------------------------------X
APPEARANCES
For Petitioner:
Eddie Murdock, pro se
20 Lincoln Avenue
South Farmingdale, NY 11735
For Respondent:
Cristin N. Connell, Esq.
Nassau County District Attorney’s Office
262 Old Country Road
Mineola, NY 11501
SEYBERT, District Judge:
Pending before the Court is pro se petitioner Eddie
Murdock’s (“Petitioner”) petition for a writ of habeas corpus (the
“Federal Petition”) pursuant to 28 U.S.C. § 2254 and
Respondent
Michael J. Sposato’s (“Respondent”) motion to dismiss.
Entry 17.)
(Docket
For the reasons that follow, the Federal Petition is
dismissed without prejudice.
1
BACKGROUND
On May 6, 2013, Petitioner was arrested and detained in
the Nassau County Correctional Center.
(Pet. at 2.1)
He was
charged with Criminal Possession of Stolen Property in the Third
Degree, Criminal Possession of a Controlled Substance in the
Seventh Degree Criminal, Unlawful Fleeing a Police Officer in a
Motor Vehicle in the Third Degree, and violations of the New York
State Vehicle and Traffic Law, including Aggravated Unlicensed
Operation of a Motor Vehicle.
(Connell Aff.,2 Docket Entry 12-1,
at 3-4.)
On May 15, 2013, the day of Petitioner’s arraignment,
Petitioner claims that his state-appointed attorney asked him to
sign a waiver of his rights to a felony examination, a speedy grand
jury presentment, and speedy trial.
declined to do so.
(Pet. at 2.)
(Pet. at 2.)
Petitioner
Petitioner refused to sign the
waiver, but alleges that his attorney executed it anyway.
(Pet.
at 2, 3.)
On July 22, 2013, Petitioner filed a motion in limine
asserting that he “never gave counsel of record or the court any
waiver of any rights to be present in open court.”
(Pet. Ex. B,
Page numbers of the Federal Petition and other Docket Entries
referenced herein refer are those generated by the Electronic
Case Filing System.
1
The Connell Affidavit can be found at Docket Entry 17, pages 49.
2
2
Docket Entry 1, at 7-8, ¶ 15.)
In the motion, Petitioner asked
the court to “[p]reclude [his] appointed counsel from waiving
defendant[’s] appearances before the court,” and argued that “each
and every adjournment where the defendant is either not produced
or not brought before the court [should be charged] against the
[P]eople,” and “any action taken outside of his presence in open
court is a violation of his rights to due process of law and is
unauthorized.”
(Pet. Ex. B, at 10-19, ¶¶ 4, 21.)
On August 13, 2013, Petitioner filed a petition for a
writ of habeas corpus in the New York State Appellate Division,
Second Department (the “State Petition”).
Ex. C at 20-23.)
(Connell Aff. ¶ 8; Pet.
Petitioner alleged in the State Petition that he
was denied his rights to: (1) appear before the court, (2) a felony
exam, (3) a speedy trial, and (4) effective assistance of counsel.
(Pet.
Ex.
C.)
The
Appellate
Division
denied
Petitioner’s
application on December 17, 2014 and the New York State Court of
Appeals also denied his subsequent appeal.
(Pet. Br, Exs. D at
24-25, F at 39-42.)
On May 2, 2014, the trial court denied Petitioner’s
motion in limine in his criminal case.
(Connell Aff. ¶ 14.)
However, Petitioner filed a motion to dismiss his indictment on
May 5, 2014, claiming that his right to a speedy trial had been
violated.
(Connell Aff. ¶ 15.)
On July 30, 2014, the trial court
denied Petitioner’s motion to dismiss.
3
(Connell Aff. ¶ 15.)
On May 1, 2014, Petitioner filed the Federal Petition
currently pending before this Court. (Docket Entry 1.) Petitioner
alleges in the Federal Petition that he was “not being produced in
court, [he was] still being represented by members of the same 18B Panel being sued by [him], and [he was] still being denied [his]
rights
to
due
process,
a
speedy
representation and other rights.”
trial,
conflict-free
(Pet. at 5.)
On October 8, 2014, Respondent moved to dismiss the
Federal Petition and on September 8, 2015 the Court denied the
motion.
See Murdock v. Sposato, No. 14-CV-2931, 2015 WL 5230453,
at *1 (E.D.N.Y. Sept. 8, 2015).
The Court has since treated the
Federal Petition as a claim under 28 U.S.C. § 2254. Murdock, 2015
WL 5230453, at *1.
In November 2014, Petitioner subsequently pled guilty to
one count of Criminal Possession in the Fourth Degree (Penal Law
§ 165.45[5]) in satisfaction of the entire indictment.
Aff. ¶ 16.)
(Connell
On April 20, 2015, Petitioner was sentenced to an
indeterminate
term
of
imprisonment.
(Connell Aff. ¶ 16.)
was released on parole.
one
and
one-half
to
three
years’
On June 5, 2015, Petitioner
(Connell Aff. ¶ 16.)
Petitioner’s criminal conviction was filed.
No appeal of
(Connell Aff. ¶ 16.)
On October 7, 2015, Respondent filed a motion to dismiss
the Federal Petition, which is currently pending before this Court.
(Docket Entry 17.)
Respondent argues that all of Petitioner’s
4
claims
are
unexhausted
because
Petition
never
“presented
his
claims to all the state courts authorized to hear them,” and
therefore the Court is without jurisdiction to hear the Federal
Petition.
(Resp.’s Br.,3 15-16.)
Petitioner did not file any
opposition to Respondent’s motion.
DISCUSSION
The
Court
will
first
address
the
applicable
legal
standards before turning to the Federal Petition
I. Legal Standards
28 U.S.C. § 2254 provides that “a district court shall
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
custody
in
violation
of
the
Constitution or laws or treaties of the United States.”
A habeas corpus petition is not a vehicle to relitigate
every issue previously determined in state court.
Herrara v.
Collins, 506 U.S. 390, 401, 113 S. Ct. 853, 861, 122 L. Ed. 2d 203
(1993).
Rather, a state prisoner seeking habeas relief under
Section 2254 must show that he is “in custody in violation of the
Constitution or laws or treatises of the United States.” 28 U.S.C.
§ 2254(a).
“[T]he petitioner bears the burden of proving by a
preponderance of the evidence that his constitutional rights have
3
Respondent’s Brief can be found at Docket Entry 17 at 10-18.
5
been violated.”
Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997);
see also Hawkins v. Costello, 460 F.3d 238, 246 (2d Cir. 2006);
Bonner v. Ercole, 409 F. App’x 437, 438 (2d Cir. 2010).
Section
2254,
as
amended
by
the
Antiterrorism
and
Effective Death Penalty Act of 1996 (AEDPA), provides, in part,
that:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was not
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim – (1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established [f]ederal
law, as determined by the Supreme Court of the
United States.
28 U.S.C. § 2254(d)(1).
As the Second Circuit noted in Jones v.
Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has
“construed the amended statute so as to give independent meaning
to ‘contrary [to]’ and ‘unreasonable.’”
“Under the ‘contrary to’
clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides
a case differently than [the] Court has on a set of materially
indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412-
13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000).
“Under the
‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing
6
legal
principle
from
[the
Supreme]
Court’s
decisions
unreasonably applies that principle to the facts.”
at 413, 120 S. Ct. at 1523.
but
Id. 529 U.S.
This standard does not require that
reasonable jurists all agree that the state court was wrong.
529 U.S. at 409-10, 120 S. Ct. at 1521-22.
Id.
Rather, the standard
“falls somewhere between ‘merely erroneous and unreasonable to all
reasonable jurists.’”
Jones, 229 F.3d at 119 (quoting Francis S.
v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
The Section 2254(d) standard is “difficult to meet” for
two reasons.
White v. Woodall, 134 S. Ct. 1697, 1701, 188 L. Ed.
2d 698 (2014) (quoting Metrish v. Lancaster, 133 S. Ct. 1781, 1786,
185 L. Ed. 2d 988 (2013))).
First, the term “clearly established
Federal law” applies only to “‘the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions.’”
Id. (quoting Howes
v. Fields, 132 S. Ct. 1181, 1187, 182 L. Ed. 2d 17 (2012)). Second,
because “an ‘unreasonable application of’ those holdings must be
‘objectively unreasonable,’ not merely wrong[,] even ‘clear error’
will not suffice.”
Id. (quoting Lockyer v. Andrade, 538 U.S. 63,
75-76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144 (2003)).
Thus,
“‘[a]s a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on
the claim being presented in federal court was so lacking in
justification
that
there
was
an
error
well
understood
and
comprehended in existing law beyond any possibility for fairminded
7
disagreement.’”
Id. (quoting Harrington v. Richter, 562 U.S. 86,
131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011)) (alteration in
original).
Although
Section
2254
imposes
a
highly
deferential
standard of review, it does not require blind deference to every
state court decision.
“If, after carefully weighing all the
reasons for accepting a state court’s judgment, a federal court is
convinced
that
Constitution,
a
that
prisoner’s
custody
independent
.
judgment
.
.
violates
should
the
prevail.”
Williams, 529 U.S. at 389.
A.
Exhaustion
Under 28 U.S.C. § 2254, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court
may not grant habeas relief unless the petitioner has first
exhausted his claims in state court.
See 28 U.S.C. § 2254(b)(1)
(“An application for writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that: (A) the applicant has exhausted
the remedies available in the courts of the State; or (B)(i) there
is an absence of available State corrective process; or (B)(ii)
circumstances
protect
the
exist
rights
that
of
render
the
such
process
applicant.”);
id.
ineffective
§
2254(c)
to
(“An
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
8
section, if he has the right under the law of the State to raise,
by an available procedure, the question presented.”); O’Sullivan
v. Boerckel, 526 U.S. 838, 842, 199 S. Ct. 1728. 1731, 144 L. Ed.
2d 1 (1999) (“[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims
to a federal court in a habeas petition.”).
The exhaustion requirement is grounded in principles of
comity and federalism.
dictates
that
when
O’Sullivan, 526 U.S. at 844 (“Comity thus
a
prisoner
alleges
that
his
continued
confinement for a state court conviction violates federal law, the
state courts should have the first opportunity to review this claim
and provide any necessary relief.”) (citations omitted).
Exhaustion “requires that the prisoner ‘fairly present’
his constitutional claim to the state courts, which he accomplishes
‘by presenting the essential factual and legal premises of his
federal constitutional claim to the highest state court capable of
reviewing it.’”
Jackson v. Conway, 763 F.3d 115, 133 (2d Cir.
2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005)).
“While ‘a state prisoner is not required to cite chapter and verse
of the Constitution in order to satisfy this requirement,’ he must
tender his claim ‘in terms that are likely to alert the state
courts to the claim’s federal nature.’”
Jackson, 763 F.3d at 133
(quoting Carvajal v. Artus, 663 F.3d 95, 104 (2d Cir. 2011)).
A
petitioner may sufficiently alert the state court to the nature of
9
his constitutional claim by citing to a specific constitutional
provision.
Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 94-95 (2d
Cir. 2001).
However, a petitioner may not merely “make a general
appeal to a constitutional guarantee as broad as due process to
present the ‘substance’ of such a claim to a state court.”
Gray
v. Netherland, 518 U.S. 152, 153, 163, 116 S. Ct. 2074, 2076, 135
L. Ed. 2d 457 (1996) (citations omitted) (holding that a general
appeal to a “broad federal due process right” was insufficient to
meet
the
exhaustion
analysis”
of
the
requirement
specific
without
claim
based
a
“more
on
the
particular
relevant
constitutional law (citation omitted)); see also Smith v. Duncan,
411 F.3d 340, 349 (2d Cir. 2005) (“‘The greatest difficulty arises
when in the state court the petitioner has described his claim in
very broad terms, such as denial of a ‘fair trial.’”) (quoting
Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186, 193 (2d Cir.
1982)).
A petitioner may also fairly present his claim to a state
court by: “‘(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c) assertion of
the claim in terms so particular as to call to mind a specific
right protected by the Constitution, [or] (d) allegation of a
pattern
of
facts
that
is
constitutional litigation.’”
well
within
the
mainstream
of
Carvajal, 633 F.3d at 104 (quoting
10
Daye, 696 F.2d at 194).
In this analysis, the critical question
is whether the legal doctrines asserted in the state and federal
courts are substantially the same, such that the court would have
been on notice of the constitutional nature of the claim, even if
it was argued primarily on state law grounds.
349-50; Daye, 696 F.2d at 192.
Smith, 411 F.3d at
A federal claim is not fairly
presented for the purposes of habeas exhaustion when the statelaw claim raised in state court is “no more than somewhat similar”
to a claim for relief grounded in federal law.
Smith, 411 F.3d at
350 (citing Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005).
II.
Analysis
Liberally
construing
the
Federal
Petition
and
interpreting it to raise the strongest arguments that it suggests,
Petitioner asserts the following grounds in his Petition: (1) he
was denied his Sixth Amendment right effective assistance of
counsel, (2) he was denied his Sixth Amendment right to a speedy
trial, (3) he was denied his right to appear in court under the
Sixth and Fourteenth Amendments, and (4) he was denied his right
to
due
process
under
the
Fourteenth
Amendment
(Pet.
at
5.)
Respondent argues that the Federal Petition should be dismissed
because none of Petitioner’s arguments were raised on direct
appeal, and therefore they remain unexhausted.
16.)
The Court agrees.
11
(Resp.’s Br. at
In New York, “generally a writ of habeas corpus may not
be used to review questions that could have been raised on direct
appeal . . . .”
People ex rel. Rosenfeld v. Sposato, 87 A.D.3d
665, 665, 928 N.Y.S.2d 350, 351, (2d Dep’t 2011).
necessity”
may
dictate
departure
However,
“practicality
and
general rule.
People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262,
220 N.E.2d 653, 655, 273 N.Y.S.2d 897, 900 (1966).
from
this
In this case,
Petitioner raised all the grounds he currently relies upon in his
State Petition submitted to the New York State Appellate Division.
However, he did not raise any of these grounds on direct appeal,
and in fact, did not file a direct appeal after pleading guilty to
Criminal Possession in the Fourth Degree.
Yet, Petitioner’s
ineffective assistance, speedy trial, right to be present, and due
process claims are all grounds that could and should have been
raised on direct appeal.
See People ex rel. Hunter v. Buffardi,
15 A.D.3d 736, 737, 788 N.Y.S.2d 871, 872 (3d Dep’t 2005) (holding
that a petitioner’s application for habeas relief on the ground
that he was denied effective assistance of counsel and the right
to a speedy trial were “more properly the subject of a direct
appeal from the judgment of conviction”); People ex rel. Allen v.
Maribel, 107 A.D.3d 831, 832, 966 N.Y.S.2d 685 (2d Dep’t 2013)
(finding that “[h]abeas corpus does not lie to determine whether
the right to a speedy trial has been denied in a pending criminal
action[,] and is an issue appropriately raised on direct appeal)
12
(alteration in original; quotation marks and citations omitted);
People ex rel. McCoy v. Filion, 295 A.D.2d 956, 956, 744 N.Y.S.2d
604, 605 (4th Dep’t 2002) (holding that Petitioner’s claim that he
was denied the right to be present at a grand jury proceeding was
“not appropriate for habeas relief because it could have been
raised on direct appeal or by a CPL article 440 motion”) (citations
omitted).
Moreover, both the Second Department and the New York
Court of Appeals have held that “[t]he commencement of a pretrial
collateral proceeding does not relieve a [petitioner] from the
requirement of making an appropriate protest in the form required
by statute in the criminal proceeding.”
People v. Jordan, 96
A.D.2d 1060, 1060, 466 N.Y.S.2d 486 (2d Dep’t 1983), aff’d, 62
N.Y.2d
825,
466
N.E.2d
145,
477
N.Y.S.2d
605
(N.Y.
1984).
Petitioner’s claims therefore were not exhausted as a result of
his filing and subsequent appeals of the State Petition.
Rather,
as a precondition to seeking habeas relief in federal court,
Petitioner was required to file a direct appeal in his underlying
criminal case and appeal any adverse decision.
Since Petitioner
did not do so, all the claims in his Federal Petitioner remain
unexhausted.
III. Dismissal Without Prejudice
Because Petitioner failed to exhaust his claims, this
Court
has
no
basis
to
retain
jurisdiction
Petition, which must be dismissed.
13
over
the
Federal
See Diguglielmo v. Sankowski,
42 F. App’x 492, 496 (2d Cir. 2002); Baity v. McCary, No. 02-CV1817, 2002 WL 31433293, at *2 (S.D.N.Y. Oct. 31, 2002).
The
Federal Petition is therefore dismissed without prejudice while
Petitioner pursues exhaustion of his claims.4
CONCLUSION
For
the
foregoing
reasons,
Respondent’s
motion
to
dismiss (Docket Entry 17) is GRANTED and Petitioner’s application
for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
Clerk of the Court is directed to mark this matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September
21 , 2016
Central Islip, New York
The Court expresses no opinion as to whether one or more of
Petitioner’s claims are procedurally barred at this juncture.
4
14
The
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