Ashby v. Sposato et al

Filing 13

ORDER granting 8 Motion to Dismiss For the reasons stated herein, respondents motion to dismiss the petition is granted and the petition is dismissed without prejudice to petitioner refiling the petition once he has exhausted his state court remedies. Ordered by Judge Joseph F. Bianco on 1/26/2017. (Hammond, Daniel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-846 (JFB)
_____________________

BRANDAN ASHBY,
Petitioner,
VERSUS

MICHAEL SPOSATO,
Respondent.
___________________
MEMORANDUM AND ORDER
January 26, 2017
___________________

JOSEPH F. BIANCO, District Judge:
On February 9, 2016, petitioner Brandan
Ashby (“petitioner” or “Ashby”) petitioned
this Court for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, challenging his arrest and indictment for criminal possession of a weapon in the second degree,
criminal possession of a weapon in the third
degree, and resisting arrest. (Pet. for Habeas
Corpus (“Pet.”), ECF No. 1.) Petitioner
1
It is unclear precisely when petitioner received his
sentence. (See Resp.’s Aff. ¶ 6 (stating petitioner was
scheduled to be sentenced on May 31, 2016); Letter
Undated from Plaintiff to Judge Bianco RE: Case
Status, ECF No. 9 (“Pet.’s Undated Letter”), at 3
(stating that sentencing was rescheduled to June 30,
2016); Letter Dated 1/2/17 from Pro Se to Judge
Bianco RE: Status of My Case, ECF No. 10 (“Pet.’s
January 2 Letter”) (informing this Court that petitioner
is “now in the custody of New York State DOCCS”).
The timing of his sentencing, however, is immaterial
to this Court’s analysis. Instead, only the fact that he
was sentenced proves relevant, and it appears from the
public record that petitioner has, in fact, been sentenced. See New York State Dept. of Corrections and

pleaded guilty to criminal possession of a
weapon in the third degree on March 23,
2016 (Affidavit in Support of Respondent’s
Motion to Dismiss Petition for a Writ of
Hapeas Corpus, ECF No. 8 at i–iii (“Resp.’s
Aff.”), ¶ 6.), and the court sentenced him to
an indeterminate term of three to six years
imprisonment. 1

Community Supervision, Inmate Population Information Search, Inmate Information for DIN # 16-A4699, http://nysdoccslookup.doccs.ny.gov/ (last accessed January 26, 2017); see also Giraldo v. Kessler,
694 F.3d 161, 164 (2d Cir. 2012) (courts may “take
judicial notice of relevant matters of public record”);
Bentley v. Dennison, 852 F. Supp. 2d 379, 382
(S.D.N.Y. 2012) (“The Court takes judicial notice of
the . . . state court documents . . . that relate to the
plaintiffs’ custody. Judicial notice of public records is
appropriate—and does not convert a motion to dismiss
into a motion for summary judgment—because the
facts noticed are not subject to reasonable dispute and
are capable of being verified by sources whose
accuracy cannot be reasonably questioned.”).

In this habeas petition, Ashby challenges
his arrest as unlawful under the Fourth
Amendment. (Pet. at 3–4.) Furthermore, in
a letter filed with the Court after his petition,
Ashby contests the voluntariness of his guilty
plea and the effectiveness of his attorney.
(Pet.’s Undated Letter at 2–4.) Respondent
Michael Sposato, Sheriff of Nassau County,
has moved to dismiss the petition, arguing
that petitioner failed to exhaust his State
Court remedies. 2 For the reasons that follow,
this Court grants respondent’s motion to dismiss due to petitioner’s failure to exhaust his
claims in state court. This dismissal is without prejudice to petitioner refiling his petition
upon exhaustion of his claims in state court.

Court, challenging his arrest, the search of his
home, and his indictment. (ECF No. 1.) After filing the petition, petitioner pleaded
guilty to criminal possession of a weapon in
the third degree on March 23, 2016. (Resp.’s
Aff. ¶ 6; Pet.’s Undated Letter at 2–3.) Respondent filed a motion to dismiss the petition on May 25, 2016. (ECF No. 8.) The
state court later sentenced him to an indeterminate term of three to six years imprisonment, though the timing of the sentencing
hearing is unclear. See supra note 1. On June
17, 2016, the Court received an undated letter
from petitioner challenging the voluntariness
of his guilty plea and the effectiveness of his
attorney (Pet.’s Undated Letter at 2–4), and,
on January 2, 2017, petitioner sent the Court
a letter giving notice that he was “in the custody of New York State DOCCS and [has]
been since 11/25/16” (Pet.’s January 2 Letter). The Court has fully considered the parties’ submissions.

I. BACKGROUND
The Court has adduced the following
facts from the petition, respondent’s supporting affidavit, and petitioner’s various letters
to this Court.

II. DISCUSSION

On April 30, 2014, petitioner’s wife
called 911 after having an argument with petitioner over the phone. (Pet. at 3.) Upon their
arrival, officers with the Glen Cove, New
York Police Department entered petitioner’s
home, conducted a search, and recovered a
firearm, which petitioner claims belonged to
a family member who had stayed with them
on an earlier date. (Id. at 4.) They arrested
petitioner without a warrant. (See id.; Resp.’s
Aff. ¶ 6.) The Nassau County District Attorney’s Office subsequently charged him with
criminal possession of a weapon in the second degree, criminal possession of a weapon
in the third degree, and resisting arrest.
(Resp.’s Aff. ¶ 5.)

Pursuant to 28 U.S.C. § 2254(b)(1)(A), a
federal habeas petition must be dismissed if
the petitioner has failed to exhaust all state
judicial remedies. 28 U.S.C. § 2254(b)(1)(A)
(“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 unless it appears that . . . the applicant
has exhausted the remedies available in the
courts of the State.”). 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), a petitioner must fairly present his federal constitutional claims to the
highest state court having jurisdiction over
them. See Grey v. Hoke, 933 F.2d 117, 119

On February 2, 2016, petitioner filed a
petition for a writ of habeas corpus with this
2

Respondent’s second argument—that petitioner is
not in custody pursuant to a state judgment of conviction because he has not been sentenced (Mem. of Law
in Support of Resp.’s Mot. to Dismiss Pet. for a Writ

of Habeas Corpus, ECF No. 8 at 1–8, at 3–4)—is now
moot, given that petitioner was sentenced after respondent filed its motion to dismiss. See supra note 1.

2

Finally, where a petitioner has not exhausted any of the claims raised in his petition and may still seek relief under state law,
the proper procedure is to dismiss the petition
without prejudice to it being refiled after the
petitioner has exhausted his state court remedies. See, e.g., Carpenter v. Reynolds, 212 F.
Supp. 2d 94, 98 (E.D.N.Y. 2002) (holding
that, where a habeas petition sets forth only
unexhausted claims, the district court has no
basis to retain jurisdiction while the petitioner pursues exhaustion in the state courts);
Ramos v. Superintendent of Clinton Corr.
Facility, No. 01-CV-8743 (LAP) (FM), 2002
WL 1226860, at *3 (S.D.N.Y. Apr. 12, 2002)
(“As the Second Circuit recently has indicated, if [the] petition contained any exhausted claims, the appropriate course of action would be to dismiss the unexhausted
claims, stay the remainder of the petition, and
direct [petitioner] to notify the Court within a
short period after he has completed the exhaustion of his state court remedies. Here,
however, [the] petition contains no exhausted
claims. Accordingly, this Court has no basis
to retain jurisdiction while [petitioner] pursues exhaustion.”) (citation omitted); Channer v. Brooks, No. 399-CV-2564 (CFD),
2001 WL 1094964, at *4 n.3 (D. Conn. Sept.
10, 2001) (dismissing habeas petition for failure to exhaust any claim in the petition).

(2d Cir. 1991). Exhaustion of state remedies
requires that a petitioner “fairly presen[t] 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) (per curiam) (quoting Picard
v. Connor, 404 U.S. 270, 275 (1971)) (alteration in original). Furthermore, “[t]he burden
of proving exhaustion lies with the habeas petitioner.” Cartagena v. Corcoran, No. 04CV-4329, 2009 WL 1406914, at *3
(E.D.N.Y. May 19, 2009).
Passage through the state courts, in and of
itself, “is not sufficient.” Picard, 404 U.S. at
275. To provide the State with the necessary
“opportunity,” the prisoner must fairly present his claim in each appropriate state court
(including a state supreme 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 appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365–66. A petitioner
satisfies this requirement “only if he has informed the state court of both the factual and
the legal premises of the claim he asserts in
federal court.” Jones v. Keane, 329 F.3d 290,
294–95 (2d Cir. 2003) (citation omitted).
“Specifically, [petitioner] must have set forth
in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the
state court has not had a fair opportunity to
rule on the claim.” Daye v. Att’y Gen. of N.Y.,
696 F.2d 186, 191–92 (2d Cir. 1982) (en
banc). To that end, “[t]he chief purposes of
the exhaustion doctrine would be frustrated if
the federal habeas court were to rule on a
claim whose fundamental legal basis was
substantially different from that asserted in
state court.” Id. at 191–92 (footnote omitted).

Petitioner has plainly failed to exhaust
state court remedies on his Fourth Amendment claim of unlawful search and seizure,
Fourteenth Amendment claim of an involuntary guilty plea, and Fourteenth Amendment
claim of ineffective assistance of counsel.
Nothing in the record indicates that he raised
his Fourth Amendment claim before the trial
court prior to entering his guilty plea, or that
he has directly appealed his conviction at this
time (and that the requisite appeal has been
decided). Thus, he has failed to establish that
he exhausted his claims in state court. See
Pena v. Ellis, No. 07CV2736, 2007 WL
4565032, at *2 (E.D.N.Y. Dec. 21, 2007)
3

(holding that habeas petitioner failed to exhaust where “[h]e did not file a direct appeal”); Fabre v. Taylor, No. 08 CIV.5883
(DLC), 2009 WL 1457169, at *3 (S.D.N.Y.
May 26, 2009) (same); Jordan v. Bennett,
968 F. Supp. 118, 121 (W.D.N.Y. 1997)
(same).
III. CONCLUSION
For the reasons stated above, respondent’s motion to dismiss the petition is granted
and the petition is dismissed without prejudice to petitioner refiling the petition once he
has exhausted his state court remedies. See
Carpenter, 212 F. Supp. 2d at 98; Ramos
2002 WL 1226860, at *3; Channer, 2001 WL
1094964, at *4 n.3. Because petitioner has
failed to make a substantial showing of a denial of a constitutional right, no certificate of
appealability shall issue.
28 U.S.C.
§ 2253(c)(2). The Clerk of the Court shall
close this case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated:

January 26, 2017
Central Islip, NY

***
Petitioner is proceeding pro se. Respondent
is represented by Jason Richards, Assistant
District Attorney, on behalf of Madeline
Singas, District Attorney, Nassau County
District Attorney’s Office, 262 Old Country
Road, Mineola, NY 11501.

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