Jones v. County Clerk of Suffolk County

Filing 6

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel; The application to proceed in forma pauperis is GRANTED. Petitioner's § 2254 habeas claim is unexhausted and the Cour t sua sponte dismisses it on that basis. Petitioner may re-file her claim once she fully exhausts it in state court, if warranted. Accordingly, this case is DISMISSED WITHOUT PREJUDICE, and the Clerk of the Court is directed to mark this matter CLO SED. Given the DISMISSAL, the application for the appointment of pro bono counsel is DENIED AS MOOT. 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. So Ordered by Judge Joanna Seybert on 9/23/2016. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CECILIA JONES,
Petitioner,
-against-

MEMORANDUM & ORDER
16-CV-1873(JS)

COUNTY CLERK OF SUFFOLK COUNTY,
Respondent.
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APPEARANCES:
For Petitioner:
Cecilia Jones, pro se
3 Teller Avenue
Coram, NY 11727
For Respondent:

No appearance

SEYBERT, District Judge:
By Petition filed on April 7, 2016, Cecilia Jones,
(“Petitioner”) appearing pro se, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging her October 5, 2011
judgment of conviction in County Court, Suffolk County. Petitioner
has also moved to proceed in forma pauperis and for the appointment
of pro bono counsel to represent her in this case.

Upon review of

the Petitioner’s declaration in support of her application to
proceed in forma pauperis, the Court finds that Petitioner’s
financial

status

qualifies

her

to

prepayment of the $5.00 filing fee.

file

the

Petition

without

Accordingly, the 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 consideration of this
Petition and, for the reasons set forth below, has determined that
the Petition is premature.

Accordingly, the Petition is dismissed

without prejudice.
BACKGROUND
Petitioner was convicted on October 5, 2011 following a
jury trial of Welfare Fraud in the Third Degree (N.Y. Penal Law
§ 158.15), and three counts of Offering a False Instrument in the
First Degree (N.Y. Penal Law § 175.35).

(Pet. ¶¶ 2, 5, 6).

Petitioner alleges that she filed an appeal of the judgment of
conviction to the Appellate Division, Second Department, and that
her appeal was denied on October 16, 2015.

(Pet. ¶ 9.)

Petitioner

did not seek further review by a higher state court, nor did she
file a petiton for certiorari in the United States Supreme Court.
(Pet. ¶ 9(g)-(h)).

The instant Petition followed.
DISCUSSION

In order to bring a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, a petitioner must first exhaust the
remedies available in state court.

28 U.S.C. § 2254(b)(1)(A).

To

properly exhaust state court remedies, a petitioner “must apprise
the highest state court of both the factual and the legal premises
of the federal claims ultimately asserted in the habeas petition.”
See Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (citation
omitted).
Here, Petitioner has not appealed from the October 16,
2015 denial of her appeal by the Appellate Division, Second
Department.

Consequently, Petitioner’s § 2254 habeas claim is
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unexhausted and the Court sua sponte dismisses it on that basis.
Petitioner may re-file her claim once she fully exhausts it in
state court, if warranted.

Accordingly, this case is DISMISSED

WITHOUT PREJUDICE, and the Clerk of the Court is directed to mark
this matter CLOSED.

Given the DISMISSAL, the application for the

appointment of pro bono counsel is DENIED AS MOOT.
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. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.
Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

September
23 , 2016
Central Islip, New York

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