Pollack v. Patterson et al

Filing 123

MEMORANDUM OPINION AND ORDER # 101974: The Court has carefully considered all of the parties' arguments. To the extent not specifically addressed above, they are either moot or without merit. For the reasons explained above, the petitioners moti on for reconsideration or reargument of the Court's December 22, 2011 Memorandum Opinion and Order is denied. The Court also declines to issue a certificate of appealability, or to reconsider the previous refusal to do so, because " [w]her e, 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 this case. Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007); see also 28 U.S.C. § 2253(c) (1) (A). The plaintiff may, however, seek a certificate of appealability directly from the Court of Appeals for the Second Circuit. (Signed by Judge John G. Koeltl on 6/21/2012) (mro) Modified on 6/22/2012 (ft).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
MARVIN ARNOLD POLLACK,
Petitioner,

10 Civ. 6297 (JGK)(JLC)

- against -

MEMORANDUM OPINION
AND ORDER

DAVID PATTERSON, ET AL.,
Respondents.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff pro se, Marvin Pollack (“Pollack”), has moved
for reconsideration or re-argument of the Court’s December 22,
2011 Memorandum Opinion and Order which adopted the Report and
Recommendation of Magistrate Judge Cott dated February 28, 2011,
or, in the alternative, for a certificate of appealability of
the December 22 Memorandum Opinion and Order.

The Court’s

previous Order dismissed Pollack’s petition, which seeks his
release from civil commitment, for failure to exhaust his claims
in state court.

See Pollack v. Paterson, No. 10 Civ. 6297, 2011

WL 710605 (S.D.N.Y. Mar. 1, 2011), report and recommendation
adopted, 2011 WL 6747409 (S.D.N.Y. Dec 23, 2011).

I.
The standard to be applied to a motion for reconsideration
under Local Rule 6.3 is well-established.

It is the same as the

standard that was applied under former Local Civil Rule 3(j).

See United States v. Letscher, 83 F. Supp. 2d 367, 382 (S.D.N.Y.
1999) (collecting cases).

The moving party is required to

demonstrate that “the Court [ ] overlooked controlling decisions
or factual matters that were put before it on the underlying
motion, and which, had they been considered, might have
reasonably altered the result before the court.”

Vincent v.

Money Store, No. 03 Civ. 2876, 2011 WL 5977812, at *1 (S.D.N.Y.
Nov. 29, 2011) (citation omitted).
The decision to grant or deny a motion for reconsideration
“rests within the sound discretion of the district court.”

Id.

The rule “is narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been fully
considered by the court.”

Walsh v. McGee, 918 F. Supp. 107, 110

(S.D.N.Y. 1996) (internal quotation marks and citation omitted);
see also Eaton Vance Mut. Funds Fee Litig., 403 F. Supp. 2d 310,
313 (S.D.N.Y. 2005), aff’d, Bellikoff v. Eaton Vance Corp., 481
F.3d 110 (2d Cir. 2007); Vincent, 2011 WL 5977812, at *1.

II.
The petitioner in his initial motion for reconsideration
argued that the letter dated December 5, 2011 from his pro bono
psychologist to New York Supreme Court Justice Berry, which the
Court referenced in the December 22, 2011 Memorandum Opinion and
Order, related to his objection to an order of medication, and

2

not to his underlying retention proceedings.

The petitioner

further argued that there have in fact been no hearings on his
underlying retention proceedings in over five years, and that,
as a result, he falls within the exceptions to the exhaustion
requirement that are provided by 28 U.S.C. § 2254(b)(1)(B).
If Pollack is correct that he now has four pending
retention proceedings but has not had a hearing in over five
years, he still has not shown that this is the result of “an
absence of available State corrective process” or “circumstances
. . . that render such process ineffective to protect [his]
rights.”

DiSimone v. Phillips, 518 F.3d 124, 126 (2d Cir. 2008)

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

Pollack does not

assert that he lacked notice of his right to a hearing in those
proceedings.

(See, e.g., Fleischmann Decl. in Supp. of Mot. to

Dismiss dated Oct. 19, 2010, Ex. A at 5 (form entitled “Special
Notice to Defendant” stating “You have the right to a court
hearing on this application [for a retention order] if you make
a timely demand for such a hearing.”).)

Indeed, the plaintiff

has moved to represent himself in any such proceedings, and
attempted to appeal the decisions by the New York State Supreme
Court that he may not do so.

By his own admission, the

petitioner has failed to obtain a judgment of the state court in
any of the retention proceedings that he seeks to challenge.
They are ongoing and he has not exhausted the state court

3

remedies that would be available to challenge any order of
retention.

See N.Y. Crim. Proc. Law § 330.20(21) (“Appeals”).

In any event, to the extent that the retention proceedings
themselves are ineffective to protect his rights, the petitioner
has the ability to file a state petition for habeas corpus.

See

N.Y. Mental Hygiene Law § 33.15(a) (“A person retained by a
facility . . . is entitled to a writ of habeas corpus to
question the cause and legality of detention upon proper
application.”).

State petitions for habeas corpus are “the

appropriate avenue of relief for persons detained pursuant to
[CPL] § 330.20 who challenge the Commissioner's compliance with
the statutory requirements for continued retention of a
defendant,” Martens v. Katz, No. 87 Civ. 0990, 1987 WL 18773, at
*2 (E.D.N.Y. Oct. 14, 1987) (citing People ex rel. Thorpe v. Von
Holder, 473 N.E.2d 14, 15-17 (N.Y. 1984)).
Pollack at one point asserted that he filed a state
petition for habeas corpus and that this petition was denied.
(Pollack Letter Mem. dated Dec. 31, 2011 at 54.)

Pollack

asserted that he consolidated his appeal from the adverse state
habeas decision with appeals from other interlocutory orders in
his retention proceeding, and that the New York State Supreme
Court, Appellate Division, ignored his appeal from the adverse
state habeas decision in deciding that the interlocutory orders
were unappealable.

(See Pollock Letter Mem. dated Dec. 31, 2011

4

at 57); see also In re Marvin P., 858 N.Y.S.2d 904 (App. Div.
2008).

New York state habeas petitioners may appeal an adverse

judgment as of right.

See N.Y. C.P.L.R. § 7011.

Pollack has not substantiated his assertion that he
successfully consolidated his appeal of any adverse state habeas
proceeding with his appeals of the interlocutory orders
concerning his medication and pro se status in his retention
proceeding.

Indeed, the Appellate Division’s ruling, which the

plaintiff suggests “ignor[ed]” his appeal from the adverse state
habeas proceeding, plainly deals only with the appeals taken
from interlocutory orders in the retention proceeding.
Marvin P., 858 N.Y.S.2d at 904.

See

Nor has Pollack established

that any of the issues that he attempts to raise in his current
petition before this Court were in fact raised in any state
habeas petition.

(See, e.g., Fleischmann Decl. in Opp. to Mot.

for Reconsid. dated Mar. 21, 2012, Ex. A (Pollock Affidavit
dated Oct. 13, 2006) at 97-98 (requesting certain relief “as
regards my habeas,” specifically a transfer to a different
facility and access to certain records).
Pollack now asserts that his habeas petition was not
denied, and that only his motion to represent himself was
denied.

(See Pollack Letter Mem. dated Mar. 9, 2012 at 2-3.)

Pollack asserts that his habeas petition was withdrawn without
prejudice, allegedly against his will, by his counsel in August,

5

2009.

(See Pollack Letter Mem. dated Mar. 9, 2012 at 4.)

Despite this, Pollack asserts that his habeas petition has in
fact been “pending off calendar” since August, 2009.

(See

Pollack Letter Mem. dated May 2, 2012 at 22.)
Because the petitioner has not properly appealed any
adverse determination in his state habeas corpus proceeding, and
indeed has not established that there was such a determination,
he has not “fairly present[ed]” his state habeas claims to the
Appellate Division, and he therefore has not exhausted his
remedies.

Richardson v. Superintendent of Mid-Orange Corr.

Facility, 621 F.3d 196, 201 (2d Cir. 2010).

Moreover, because

the petitioner’s state habeas claim was never fairly presented
to the New York State Supreme Court, Appellate Division, or to
the New York Court of Appeals, this Court cannot say that there
is an absence of State corrective process, or that State
corrective process is ineffective, such that the exhaustion
requirement must be waived.

The petitioner must exhaust his

remedies in state court before proceeding before this Court.
See Martens, 1987 WL 18773, at *2 (“[D]espite the apparent
egregious delays in the Mental Health Commissioner's prosecution
of the first retention and transfer orders, petitioner's failure
to exhaust her state judicial remedies precludes this Court from
hearing her application for a writ of habeas corpus.
Petitioner, however, is advised to file a new application for a

6

writ in accordance with Mental Hygiene Law § 33.15 and Article
70 of the Civil Practice Law and Rules.”).

The respondents

specifically represent that the petitioner can file a petition
for habeas corpus in state court at any time.

(Resp.’s Mem.

dated March 21, 2012 at 4-5.)
The petitioner has stated that he will not file another
habeas petition in state court.
Mar. 9, 2012 at 9.)

(See Pollack Letter Mem. dated

That stance is inadvisable.

The petitioner

can file an application for a writ of habeas corpus in New York
state court, stating clearly and concisely the bases under both
state and federal law upon which the plaintiff believes the writ
should be granted, and the specific relief sought.

The fact

remains that the petitioner has not obtained a final order from
a state court raising a federal constitutional issue for which
he has exhausted available state court remedies.

Because

Pollack has not raised any issue of fact or law that might
reasonably change the Court’s previous decision, the motion for
reconsideration is denied.

CONCLUSION
The Court has carefully considered all of the parties'
arguments. To the extent not specifically addressed above, they
are either moot or without merit.

For the reasons explained

above, the petitioner’s motion for reconsideration or reargument

7

of the Court's December 22, 2011 Memorandum Opinion and Order is
denied.

The Court also declines to issue a certificate of
appealability, or to reconsider the previous refusal to do so,
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 this case.
2007) i

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

see also 28 U.S.C.

§

2253(c) (1) (A).

The plaintiff may,

however, seek a certificate of appealability directly from the
Court of Appeals for the Second Circuit.
SO ORDERED.
Dated;

New York, New York
June ~I
2012

'

John G. Koeltl
States District Judge

8