Scott v. Capra

Filing 5

DECISION AND ORDER: ORDERED that petitioner's motion to stay (Dkt. No. 4 ) is GRANTED. Petitioner must advise the Court in writing, every thirty (30) days, beginning thirty (30) days from the date of this Decision and Order, on the status of th e pending state court application, including the date upon which any decision is reached. ORDERED that within thirty (30) days of the date upon which the final state court capable of reviewing petitioner's application reaches a decision, peti tioner must notify the Court of that decision. ORDERED that if petitioner fails to comply with the terms of this Decision and Order, the stay will be immediately lifted and the file returned to the Court for further proceedings. ORDERED that no response to the amended petition will be required until petitioner completes exhaustion of his unexhausted claim and the stay is lifted, or until the stay is lifted pursuant to the preceding ordering paragraph. Status Report due by 12/29/2017. Signed by Judge Brenda K. Sannes on 11/27/17. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SAKAI SCOTT,
Petitioner,
v.
9:17-CV-1130
(BKS)
MICHAEL CAPRA,
Respondent.

APPEARANCES:

OF COUNSEL:

SAKAI SCOTT
12-A-1474
Petitioner, pro se
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
BRENDA K. SANNES
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
On or about October 12, 2017, petitioner Sakai Scott f iled a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition. On October 23, 2017,
petitioner was directed to file an amended petition because his petition did not com ply with
the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas
Rules"). Dkt. No. 3, Decision and Order, at 3-4, 6. As the Court explained, it was unclear
what grounds for relief petitioner intended to assert in his petition, and the petition contained
little factual detail regarding those grounds. Id. at 4. On November 6, 2017, the Court
received petitioner's amended petition. Dkt. No. 4, Amended Petition ("Am. Pet."). Petitioner

has also (1) requested that the Court provide him a form application to proceed in forma
pauperis ("IFP"), and (2) moved to stay this action. Id.; Dkt. No. 4-1, Letter.
II.

REQUEST FOR IFP APPLICATION FORM
Petitioner is advised that, because he paid the statutory filing fee, any IFP application

in this action would be moot. As a result, petitioner need not complete an IFP application at
this time.
III.

THE AMENDED PETITION
In the amended petition, petitioner asserts that, in his original petition, he "reasserted

the claims raised on direct appeal" and requested a stay "premised on [an] unexhausted
claim now pending in the New York Court of Appeals." Am. Pet. at ¶ 2. 1 Petitioner sets forth
the arguments raised on direct appeal, and asserts that the " Question Presented" in this
action is "[w]hether the Appellate Division erred in denying relief on each . . . separate
ground raised above, [or] alternatively, whether the Appellate Division . . . finding [sic]
[p]etitioner received effective assistance of counsel was objectively unreasonable." Id. at ¶¶
8, 9(A).
On June 18, 2015, the New York State Supreme Court, Appellate Division, Third
Department, affirmed the conviction, and, on December 7, 2015, the New York Court of
Appeals denied leave to appeal. People v. Scott, 129 A.D.3d 1306 (3d Dep't 2015), lv.
denied 26 N.Y.3d 1092 (2015). With respect to collateral motions filed in state court,
petitioner asserts that, on December 15, 2016, he filed a motion to vacate the judgment of
conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Am. Pet. at ¶

1

Citations to petitioner's filings refer to the pagination generated by CM/ECF, the Court's electronic filing

system.

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10. In that motion, petitioner "argu[ed,] inter alia," that (1) the prosecutor violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose his codefendant's grand jury and trial
testimony regarding one of the drug sales at issue, and (2) trial counsel rendered ineffective
assistance by "not using Brady material to cross-examine the prosecutor's witnesses," failing
to argue that there were "gaps in the chain of custody," and failing to argue that the "integrity
of the evidence" was "compromised." Id. at ¶ 10.
Petitioner states that, on May 22, 2017, the "lower court affirmed the judgment of
conviction on procedural grounds." Id. at ¶ 11. On or about June 22, 2017, petitioner
sought leave to appeal from that denial, and also argued in the "alternative" that he was
entitled to "coram nobis relief on the ground of ineffective assistance of appellate counsel."
Id. at ¶ 11.2 On September 14, 2017, the New York State Supreme Court, Appellate
Division, Third Department, "denied leave to appeal." Id. at ¶ 12.
On October 11, 2017, petitioner "sought leave to appeal [the] denial [of a] writ of error
coram nobis," and that application is "currently pending before the Court of Appeals[.]" Id.;
accord, id. at 9, Letter to Petitioner from the New York Court of Appeals, dated Oct. 20, 2017
(explaining that petitioner's "application for leave to appeal to this Court has been assigned
to" a judge for review). In a subsequent paragraph of the amended petition, petitioner states
that the "Question Presented" is "[w]hether the Appellate Division erred on its procedural
ruling denying 440," and that he "raised substantially the same issue . . . in the unexhausted
writ of error coram nobis[.]" Id. at ¶ 13. Finally, petitioner argues that, because his claim is
still pending before the Court of Appeals, the Court should stay this proceeding. Id.

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With his amended petition, petitioner also filed his counseled notice of motion for leave to appeal from the
denial of his CPL § 440.10 motion. Dkt. No. 4 at 11-12.

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Based on petitioner's assertions, the Court liberally construes the amended petition to
advance, as grounds for habeas relief, each of the arguments raised by petitioner on his
direct appeal, CPL § 440.10 motion, and application for a writ of error coram nobis.
IV.

MOTION TO STAY
As part of his original petition, petitioner requested that the Court stay this proceeding

and hold his petition in abeyance pursuant to Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Dkt. No. 1 at 1-2. In its Decision and Order, the Court denied petitioner's req uest because
petitioner had not clearly stated his grounds for habeas relief or the procedural history of his
state court proceedings, and the Court was thus unable to determine whether a stay was
appropriate. Dkt. No. 3 at 4-5. In his amended petition, petitioner again requests a stay of
this action, so that he may exhaust his ineffective assistance of appellate counsel claim,
which, he states, is pending before the Court of Appeals. Am. Pet. at ¶¶ 2, 12, 13.
When a district court is presented with a "mixed petition" containing both exhausted
and unexhausted claims, it may dismiss the petition without prejudice or retain jurisdiction
over the petition and stay further proceedings pending exhaustion of state remedies. Rhines
v. Weber, 544 U.S. 269, 275-76 (2005). This "stay and abeyance" procedure should be
"available only in limited circumstances" where the petitioner can show (1) "good cause" for
failing to "exhaust his claims first in state court" and (2) that his unexhausted claims are not
"plainly meritless." Rhines, 544 U.S. at 275, 277.
Here, the amended petition, coupled with the letter to petitioner from the Court of
Appeals, support petitioner's assertion that he is in the process of exhausting his ineffective
assistance of appellate counsel claim, and that his leave application is pending before the
Court of Appeals. Am. Pet. at ¶ 12; id. at 9. Additionally, as directed by the Court, petitioner
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has somewhat more clearly elaborated the arguments he has advanced on direct appeal and
in his state court motions, identified the claim that remains unexhausted, and indicated his
intention to raise the same arguments in support of habeas petition in this action. At this
stage of the proceedings, the Court cannot conclude that petitioner's unexhausted claim is
plainly meritless, or that petitioner has engaged in intentionally dilatory tactics. Rhines, 544
U.S. at 277-78. Accordingly, under the circumstances of this case, petitioner's motion to stay
this proceeding is granted.
Federal courts should not, however, be turned into a "jurisdictional parking lot" for
unexhausted claims. Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004) (internal
quotation marks omitted). Petitioner must advise the Court in writing every thirty (30) days of
the status of the pending state court proceeding, including the date upon which any decision
is reached. Within thirty (30) days of the date upon which the final state court capable of
reviewing petitioner’s application has reached a decision, petitioner m ust notify the Court in
writing of the decision. Petitioner is cautioned that if he fails to comply with the terms of this
Decision and Order, the stay shall be immediately lifted and the file returned to the Court for
further proceedings.
V.

CONCLUSION
WHEREFORE, it is
ORDERED that petitioner's motion to stay (Dkt. No. 4) is GRANTED. Petitioner must

advise the Court in writing, every thirty (30) days, beginning thirty (30) days from the date of
this Decision and Order, on the status of the pending state court application, including the
date upon which any decision is reached; and it is further
ORDERED that within thirty (30) days of the date upon which the final state court
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capable of reviewing petitioner's application reaches a decision, petitioner m ust notify the
Court of that decision; and it is further
ORDERED that if petitioner fails to comply with the terms of this Decision and Order,
the stay will be immediately lifted and the file returned to the Court for further proceedings;
and it is further
ORDERED that no response to the amended petition will be required until petitioner
completes exhaustion of his unexhausted claim and the stay is lifted, or until the stay is lifted
pursuant to the preceding ordering paragraph; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order upon petitioner in
accordance with the Court's Local Rules of Practice.
Dated: November 27, 2017

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