Bruce-Ross v. Ewald

Filing 7

OPINTION AND ORDER: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; finding as moot 3 Motion to Appoint Counsel. For the reasons set forth above, the application to proceed in forma pauperis is granted butthe petition for a wri t of habeas corpus is dismissed without prejudice as it is unexhausted. Petitioner's application for the appointment of pro bono counsel to represent him in this case is denied as it is now moot. A certificate of appealability shall not issue as petitioner has not madea substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and t herefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of theCourt is directed to close the case.. Ordered by Judge Joseph F. Bianco on 5/3/2016. (Bollbach, Jean)cm by chambers to pro se by fcm on 5/3/16

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DUNCAN BRUCE-ROSS,

fiLED

Petitioner,
-against-

INSTC~f!f'~o~~i~o.N.Y.
u.s.o1
MAY 0'3 20\6

*

WARDEN EWALD,

*

OPINION & ORDER
16-CV-1767(JFB)

Respondent.

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JOSEPH F. BIANCO, District Judge:

On Aprill2, 2016, petitioner Duncan Bruce-Ross ("petitioner"), appearing prose, filed a
petition seeking writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with an application
to proceed in forma pauperis and an application for the appointment of pro bono counsel to
represent him in this case. 1 Upon review of petitioner's declaration in support of the application
to proceed in forma pauperis, the Court finds that petitioner is qualified by his financial status to
commence this action without prepayment of the filing fees. Accordingly, petitioner's application
to proceed in forma pauperis is granted.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court has conducted
an initial review of this petition and, for the reasons set forth below, has determined that because
the petition seeks to challenge his recent conviction for "willful violation of Order of Support" in
the Suffolk County Family Court, under Family Court docket number F-16549-09, it is
unexhausted. Accordingly, the petition is sua sponte dismissed without prejudice. Given the
dismissal of the petition, the application for the appointment of pro bono counsel to represent
petitioner in this case is denied as it is now moot.

1

The Court notes that petitioner's submissions are signed only by "Danielle Ali" who petitioner claims "is my Power
of Attorney and is signing on my behalf .... " (Pet at 39). Given the dismissal of the petition without prejudice,
the Court need not address whether these documents are properly signed in accordance with the Federal Rules of Civil
Procedure.

BACKGROUND
Petitioner challenges his custody arising from his December I 0, 2015 conviction and
sentence to a six-month term of incarceration by the Suffolk County Family Court. See Pet.~~ 13, see also "Ex. A" at 43.
conviction. Pet.

~~

Petitioner alleges that he has not appealed from the judgment of

8, 9(g)-(h). Nor does plaintiff allege that he has "filed any other petitions,

applications, or motions concerning this judgment of conviction in any state court." !d.

at~

I 0.

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 *I (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 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")). 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 ineffective to protect the rights of the applicant."'

Henry, 2011 WL 319935, at *I (quoting 28 U.S.C. §§ 2254(b)(l)(A), 2254(b)(l)(B)(i)-(ii)). A
federal claim is properly exhausted where it has been presented to the highest state court. !d.
(citing Picardv. Connor, 404 U.S. 270,275 (1971); Daye v. Attorney Gen. ofNew York, 696 F.2d
186, 190-91 (2d Cir. 1982)).
In the instant matter, because petitioner alleges that he has not appealed his constitutional
claims at all, he has not appealed to the highest state court having jurisdiction.

2

Given that

petitioner has not yet exhausted his state court remedies, which is required prior to the filing of a
petition under§ 2254, the petition is dismissed without prejudice. See 28 U.S.C. § 2254; Henry,
2011 WL 319935, at *2 (citing Haynes v. Fiorella, No. 10-CV-0843, 2010 WL 4365832, at *1
(W.D.N.Y. Nov. 3, 2010) (dismissing without prejudice petitioner's § 2254 petition where there
was no indication that petitioner had exhausted her state court remedies); Lynch v. DeMarco, 11CV-4708, 2011 WL 6097737, at *2 (E.D.N.Y. Dec. 1, 2011) (sua sponte dismissing unexhausted
§ 2254 petition) (citations omitted); see also Rule 4 of the Rules Governing Section 2254 Habeas
Corpus Cases in the United States District Courts ("If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition ....").
CONCLUSION
For the reasons set forth above, the application to proceed in forma pauperis is granted but
the petition for a writ of habeas corpus is dismissed without prejudice as it is unexhausted.
Petitioner's application for the appointment of pro bono counsel to represent him in this case is
denied as it is now 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 Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the
Court is directed to close the case.

SOOIP/>E~
Dated:

J,

J ost;P'~ F. 'Bin:tico
Ul)ft(d States District Judge

May
2016
Central Islip, New York
3