Pollack v. Patterson et al

Filing 112

MEMORANDUM OPINION AND ORDER: the Court adopts the Report and Recommendation of Magistrate Judge Cott, and overrules the plaintiffs objections to the Report and Recommendation. The Court declines to issue a certificate of appealability and as further set forth in this document. The Clerk of the Court is directed to enter Judgment denying the petition and closing this case. (Signed by Judge John G. Koeltl on 12/22/2011) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
MILTON ARNOLD POLLACK,
Plaintiff,

10 Civ. 6297 (JGK)(JLC)

- against -

MEMORANDUM OPINION
AND ORDER

DAVID PATTERSON, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The Court has reviewed the Report and Recommendation of
Magistrate Judge Cott dated February 28, 2011. The plaintiff has
filed Objections to that Report and Recommendation and the Court
has considered the portions objected to de novo.

The defendants

have responded to the plaintiff's objections.
The Magistrate Judge's Report and Recommendation is well
reasoned and correct, and for the reasons explained in the
Report, the Court adopts it.

The plaintiff has three retention

proceedings currently pending in New York State Supreme Court,
and, when those proceedings are resolved, he will be able to
appeal any unfavorable dispositions, including any adverse
rulings on specific motions for which interlocutory appeal is
not available as of right in New York State courts.

Indeed, the

plaintiff’s most recent submission to the Court, which included
a copy of a letter dated December 5, 2011, written from the

plaintiff’s pro bono psychologist to the judge in his retention
proceeding in advance of a hearing, only highlights that the
plaintiff’s claims have not been exhausted.
Several objections warrant brief comment.

The plaintiff

argues, in his objections, that there has been constructive
exhaustion here, because while the three underlying retention
proceedings “may be pending on the Orange [County] Supreme
[Court] Calendar, its [sic] over ‘in fact!’” (Pl’s. Objections
dated June 2, 2011 (“Pl’s. Objs.”), at V.)

However, his most

recent submission to the Court only confirms that the hearings
in his case are ongoing, and have not been abandoned.
the plaintiff has counsel in the retention proceedings.

Moreover,
If the

retention proceedings were a “sham,” as the plaintiff argues
they are, he could move by counsel for a final judgment, and
then appeal the adverse disposition.
The plaintiff also argues that exhaustion is not required
here because he falls within the exceptions provided by 28
U.S.C. § 2254(b)(1)(B).
13, 2011, at 38-52.)

(See, e.g., Pl’s. Objections dated June

Under that section, a court may review the

merits of a habeas petition, even if the state petitioner’s
claims remain unexhausted, when (i) “there is an absence of
available State corrective process; or (ii) circumstances exist
that render such process ineffective to protect the rights of
the applicant.”

DiSimone v. Phillips, 518 F.3d 124, 126 (2d

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Cir. 2008) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)-(ii)).

Under

(B)(i), a federal court may review an unexhausted claim “if it
is clear that the unexhausted claim is procedurally barred by
state law and, as such, its presentation in the state forum
would be futile.”
2001).

Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.

That is not the case here.

The underlying retention

proceedings remain ongoing, and appeals arising from those
proceeding may not be taken until there is a disposition in
those proceedings.

The plaintiff has not defaulted on his right

to such an appeal (indeed, he unsuccessfully has attempted
several interlocutory appeals already), and thus the
presentation of his claim to the Appellate Division, upon a
final disposition in the State Supreme Court, cannot be
considered futile.
With regard to (B)(ii), the Court of Appeals for the Second
Circuit has not addressed with specificity which circumstances
will render a continuing state judicial “process ineffective to
protect the rights of the applicant.”

28 U.S.C.(b)(1)(B)(ii).

Some courts have found that, where a plaintiff brings a
constitutional challenge to “inordinate delay” in the state
judicial process itself, the exhaustion “of a pending appeal
whose nondisposition is the very gravamen of the Complaint” is
not required.

United States ex rel. Green v. Washington, 917 F.

Supp. 1238, 1269 (N.D. Ill. 1996); see Simmons v. Reynolds, 898

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F.2d 865, 870 (2d Cir. 1990) (“The doctrine of exhaustion of
state remedies does not require a prisoner to wait six years, as
Simmons did here, or even three or four years before enlisting
federal aid to expedite an appeal.”); see also Harris v.
Champion, 15 F.3d 1538, 1555 (10th Cir. 1994) (“[I]nexcusable or
inordinate delay by the state in processing claims for relief
may make the state process ineffective to protect the
petitioner's rights and excuse exhaustion.”) (citation and
quotation marks omitted).

However, here, there are plainly

ongoing hearings on the underlying merits of the plaintiff’s
claim—namely, that he is competent and should be released from
the state facility.

Unlike in the “inordinate delay” cases,

then, proceedings in the plaintiff’s case are active.

This is

not a case where an appeal has languished for three or four
years.

The petitioner’s initial remedy is to attempt to

expedite a decision in his ongoing retention proceedings rather
than to enlist a federal habeas court as a means of
interlocutory review in an unfinished state court proceeding.
Indeed, rather than attempting to expedite the state court
proceedings, the petitioner indicates his intent to seek a stay
of the state court proceedings.

(Pl’s. Objs. at Q.)

In the context of parole hearings, courts in this circuit
have found that “potentially powerful arguments regarding the
futility of the state process” exist due to the cyclical nature

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of the parole review process, in which the appeal of an adverse
parole decision might be mooted before it can be exhausted by
the next review hearing.

Defino v. Thomas, No. 02 Civ. 7413,

2003 WL 40502, at *3 (S.D.N.Y. Jan. 2, 2003) (considering §
2254(b)(1)(B) exceptions); see also Robles v. Dennison, 745 F.
Supp. 2d 244, 259-260 (W.D.N.Y. 2010).

Unlike in the parole

context, though, the plaintiff does not allege that he is
subject to a continuous cycle of practically inexhaustible
adverse decisions.

He has yet to receive an adverse decision on

the merits in his retention proceedings, and he has not
substantiated the argument that this is so because of bad faith
or intentional delay.

CONCLUSION
For the reasons explained above, the Court adopts the Repot
and Recommendation of Magistrate Judge Cott, and overrules the
plaintiff’s objections to the Report and Recommendation.

The

Court declines to issue a certificate of appealability because
“[w]here, as here, the denial of the habeas petition is based
upon procedural grounds, the certificate of appealability must
show that jurists of reason would find debatable two issues: (1)
that the district court was correct in its procedural ruling,
and (2) that the applicant has established a valid
constitutional violation,” and no such showing can be made in

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this case.

Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.

2007); see also 28 U.S.C.

§

2253 (c) (1) (A).

The Clerk of the Court is directed to enter Judgment
denying the petition and closing this case.
SO ORDERED.

G. Koeltl

Dated: New York, New York
December 22, 2011

Judge

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