Phelps v. Superintendent

Filing 40

OPINION AND ORDER: re: 22 MOTION to Dismiss the Habeas Petition. filed by Superintendent. For the reasons given, the Court GRANTS in full Respondent's motion to dismiss the Petition and DENIES Petitioner's request to st ay the Petition. Petitioner's Eighth Amendment and parole denial claims are DISMISSED without prejudice, subject to renewal in a separate petition after Petitioner exhausts his state court remedies. Petitioner is DENIED leave to amend his p etition to include claims regarding the validity of his underlying 1998 conviction. The Court certifies under 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 ("IFP ") status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). Furthermore, the Court declin es to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), as Petitioner has not "made a substantial showing of the denial of a constitutional right.' 28 U.S.C. § 2253(c)(2). The Clerk of Court is directe d to terminate all pending motions, adjourn all remaining dates, and close this case. The Clerk of Court is further directed to mail a copy of this Order to Petitioner's address of record. (Signed by Judge Katherine Polk Failla on 6/7/2021) (js) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DARRYL PHELPS,
Petitioner,
20 Civ. 10352 (KPF)

-v.SUPERINTENDENT, Gouverneur
Correctional Facility,

OPINION AND ORDER

Respondent.
KATHERINE POLK FAILLA, District Judge:
Petitioner Darryl Phelps (“Petitioner”), who is proceeding pro se and is
currently incarcerated at Gouverneur Correctional Facility, filed a petition
pursuant to 28 U.S.C. § 2254 to be released from incarceration due to the
COVID-19 pandemic (the “Petition”). Thereafter, Petitioner raised several
additional claims in unsolicited supplements to his Petition, including
challenges to the denial of parole and to his underlying conviction. Respondent
Superintendent of the Gouverneur Correctional Facility filed a motion to
dismiss the Petition, arguing that (i) Petitioner failed to exhaust his state
administrative and judicial remedies prior to filing the Petition; (ii) Petitioner’s
request for release due to COVID-19 is not a proper subject of a Section 2254
petition; and (iii) Petitioner’s challenge to his conviction is untimely. In
response to the motion, Petitioner requested a stay of the Petition so that he
may have the opportunity to exhaust his state remedies. For the reasons set
forth herein, the Court grants Respondent’s motion to dismiss the Petition and
denies Petitioner’s motion to stay.

BACKGROUND 1
A.

Factual Background
1.

Petitioner’s State Court Conviction

Petitioner pleaded guilty in 1998 in New York County Supreme Court to
first degree burglary and attempted first degree rape. (Cieprisz Decl. ¶ 3).
Petitioner’s pro se motion to withdraw his guilty plea was denied, and Petitioner
was sentenced as a mandatory persistent felony offender to concurrent
indeterminate prison terms of 20 years’ to life imprisonment on each count.
(See Marinelli Aff. ¶ 4; Cieprisz Decl. ¶ 3; id. at Ex. 1). Petitioner’s conviction
was affirmed on appeal, with the Appellate Division agreeing with Petitioner’s
appellate counsel — who had filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and People v. Saunders, 384 N.Y.S.2d 161 (1st Dep’t 1976) —
that there were no non-frivolous issues to be raised on appeal, while
simultaneously rejecting Petitioner’s pro se claims regarding errors in his
conviction and sentence. People v. Phelps, 724 N.Y.S.2d 602 (1st Dep’t 2001).
The New York Court of Appeals thereafter denied Petitioner leave to appeal and,
1

This Opinion draws its facts primarily from the Declaration of Margaret A. Cieprisz in
Support of Respondent’s Motion to Dismiss the Petition (“Cieprisz Decl.” (Dkt. #23)),
and the exhibits attached thereto (“Cieprisz Decl., Ex. [ ]”). Additional facts are drawn
from the Affirmation in Opposition to Petitioner’s Second Petition for a Writ of Error
Coram Nobis, filed by the New York County District Attorney’s Office in opposition to
Petitioner’s petition for a writ of error coram nobis from the Supreme Court of the State
of New York, Appellate Division, First Judicial Department, and submitted as an
attachment to Petitioner’s letter to this Court received on March 26, 2021 (“Marinelli
Aff.” (Dkt. #17 at 4-12)).
For ease of reference, the Court refers to Petitioner’s Petition for a Writ of Habeas
Corpus as the “Petition” or “Pet.” (Dkt. #1); Respondent’s Memorandum of Law in
Support of the Motion to Dismiss as “Resp. Br.” (Dkt. #24); and Respondent’s
Opposition to Petitioner’s Motion for a Stay as “Resp. Stay Opp.” (Dkt. #33). Because
Petitioner’s claims are presented in numerous letters to the Court, where relevant the
letters will be referred to by docket number.

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on November 28, 2001, denied reconsideration of the denial of leave. People v.
Phelps, 96 N.Y.2d 905, reconsideration denied, 97 N.Y.2d 657 (2001).
Petitioner filed a motion challenging his 1998 conviction while his direct appeal
was pending, but this motion was denied on July 26, 2000. (Cieprisz Decl.
¶ 8). Petitioner did not thereafter file any further challenges to this conviction
until 2004. (Id.). Since then, Petitioner has continued his efforts to collaterally
attack his conviction and sentence in state court, but all such efforts have been
rejected. (See Marinelli Aff. ¶¶ 7-8).
2.

Petitioner’s Parole Board Proceedings

On May 13, 2019, the New York State Board of Parole (the “Parole Board”
or “Board”) denied Petitioner parole after a review of his records and a personal
interview. (Cieprisz Decl., Ex. 2). The Parole Board additionally imposed a
hold of reconsideration for 24 months. (Id.). Petitioner filed an administrative
appeal of the decision on October 7, 2019, which appeal the Parole Board’s
Appeals Unit rejected on February 24, 2020. (Id. at Ex. 3). The Appeals Unit
found that the Parole Board had considered the requisite factors and that the
Board’s decision was supported by the record, and accordingly affirmed the
Board’s decision. (See id.).
Petitioner then filed a petition in the St. Lawrence County Supreme
Court on March 19, 2020, challenging the Appeals Unit’s decision pursuant to
Article 78 of the New York Civil Practice Law and Rules (“CPLR”). (See Cieprisz
Decl., Ex. 4). On July 29, 2020, the Supreme Court dismissed the petition
without prejudice due to Petitioner’s failure to properly serve the New York
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State Office of the Attorney General (“OAG”) and the Parole Board. (See id.).
Petitioner filed a new Article 78 petition in August 2020, again challenging the
May 2019 parole denial. (Id. at Ex. 5; see also id. at Ex. 6). That petition
remains pending. (Id. at ¶ 6).
Petitioner’s most recent parole hearing was scheduled for May 18, 2021.
(See Dkt. #27, 28). The record does not disclose whether the hearing occurred
and, if so, what transpired during the hearing. The Court understands that
Petitioner’s next scheduled parole hearing is in November 2021. 2
B.

Procedural History
On December 8, 2020, the Court received from Petitioner a letter dated

October 30, 2020, requesting release from incarceration on account of the
threat to his health posed by COVID-19. (Dkt. #1). This letter was classified as
a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and
was assigned to this Court. Petitioner raised additional, unrelated claims in
subsequent letters filed on December 28, 2020 (Dkt. #3), January 12, 2021
(Dkt. #5), January 14, 2021 (Dkt. #7-8), and February 4, 2021 (Dkt. #10).
On February 5, 2021, the Court granted Petitioner leave to proceed in
forma pauperis. (Dkt. #12). The same day, the Court ordered Respondent to
answer the Petition and Petitioner’s supplemental filings to date within 60 days
of the Order. (Dkt. #13). Respondent filed a motion to dismiss the Petition on
April 6, 2021. (Dkt. #22-25).

2

Information available at http://nysdoccslookup.doccs.ny.gov/ (last accessed June 4,
2021).

4

The Court received additional letters from Petitioner on February 22 (Dkt.
#16), March 26 (Dkt. #17), April 5 (Dkt. #21), April 7 (Dkt. #26), April 13 (Dkt.
#27), April 15 (Dkt. #28), May 6 (Dkt. #32), May 13 (Dkt. #34), May 18 (Dkt.
#35), May 20 (Dkt. #36), June 3 (Dkt. #37), and June 4, 2021 (Dkt. #38-39).
On April 15, 2021, the Court ordered Respondent to respond to a letter in
which Petitioner requested that his Petition be stayed pending exhaustion of
his claims in state court. (Dkt. #28). Petitioner has reiterated his request for a
stay in subsequent letters to the Court. (See Dkt. #32, 35). Respondent filed a
letter in opposition to Petitioner’s requested stay on May 6, 2021. (Dkt. #33).
The Court now resolves Respondent’s motion to dismiss the Petition and
Petitioner’s request for a stay.
DISCUSSION
A.

Petitioner’s Claims
Petitioner’s original filing, which is dated October 30, 2020, and was

received by the Court on December 8, 2020, contains only a request for release
from incarceration due to the risk posed by COVID-19 and his pre-existing
health conditions. (See Dkt. #1). In subsequent letters, Petitioner recast this
request as a claim under the Eighth Amendment for deliberate indifference to a
serious risk of harm to Petitioner’s health. (See Dkt. #3, 5, 10). Then, without
seeking leave to amend his Petition, Petitioner filed a series of letters raising
grievances regarding the validity of his 1998 guilty plea and conviction, the
effectiveness of his trial and appellate counsel, the conditions of supervised
release included in his sentence, and the Parole Board’s May 2019 decision to
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deny him parole. (See, e.g., Dkt. #7, 8, 10). Petitioner’s most recent letters
have focused on his parole denial and ineffective assistance of counsel claims;
they have not addressed his COVID-19 claim. (See, e.g., Dkt. #32, 35, 36).
B.

The Court Grants Respondent’s Motion to Dismiss the Petition
Respondent raises three grounds for dismissal of the Petition, as de facto

amended by Petitioner’s supplemental filings: (i) Petitioner has not exhausted
his state remedies on his Eighth Amendment and parole denial claims, and has
not provided a valid excuse for failing to do so; (ii) Petitioner’s Eighth
Amendment claim is not cognizable under 28 U.S.C. § 2254 because it
concerns the conditions of Petitioner’s confinement rather than the validity or
duration of his confinement; and (iii) Petitioner’s challenge to his underlying
state conviction is not properly presented to this Court and, in any event, is
time-barred. (Resp. Br. 1). In response, Petitioner requested a stay of the
Petition in order to allow him to exhaust his state remedies with respect to his
challenges to his parole denial and to his underlying conviction. (See Dkt.
#28). Petitioner does not express an intention to pursue his Eighth
Amendment claim regarding COVID-19 in state administrative or judicial
proceedings, nor does he address Respondent’s second and third arguments for
dismissal. (See id.).
1.

Petitioner’s Eighth Amendment and Parole Denial Claims Are
Unexhausted
a.

Applicable Law

A district court may consider an application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of a state court “on
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the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). However, such application
may be granted only if it appears that “the applicant has exhausted the
remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A);
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“[B]efore a federal court can
consider a habeas application brought by a state prisoner, the habeas
applicant must exhaust all of his state remedies.”). Petitioner bears the burden
of establishing exhaustion. See Colon v. Johnson, 19 F. Supp. 2d 112, 119-20
(S.D.N.Y. 1998) (citing United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442
(2d Cir. 1958), cert. denied, 358 U.S. 935 (1959)); accord Fudge v. Laclair,
No. 13 Civ. 1370 (GTS) (TWD), 2017 WL 784785, at *5 (N.D.N.Y. Jan. 18,
2017); Vittor v. N.Y. State Dep’t of Corr. and Cmty. Supervision, No. 13 Civ. 3112
(KAM), 2014 WL 1922835, at *2 (E.D.N.Y. May 14, 2014).
In order to exhaust his state remedies, “the prisoner must ‘fairly present’
his claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature
of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995) (per curiam)). “A petitioner has ‘fairly
presented’ his claim only if he has ‘informed the state court of both the factual
and legal premises of the claim he asserts in federal court.’” Dorsey v. Kelly,
112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d
186, 191 (2d Cir. 1982) (en banc)).

7

New York State prisoners may contest the conditions of their
confinement through a petition under CPLR Article 78. See, e.g., Matter of
Wooley v. N.Y. State Dep’t of Corr. Servs., 15 N.Y.3d 275 (2010) (considering
Article 78 petition claiming that prison’s denial of medical treatment was
arbitrary and capricious, and constituted cruel and unusual punishment
under the Eighth Amendment). In addition, they may contest their
confinement by filing a habeas corpus petition in state court pursuant to CPLR
Article 70. See CPLR § 7002(a). Adverse final decisions under Article 70 are
appealable as of right, see CPLR § 7011, and adverse decisions under Article
78 are appealable by permission, see CPLR § 5701(b)(1), (c). In each case, the
relevant judgment of the trial court must first be appealed to an intermediate
appellate court, which is usually the Appellate Division. See N.Y. Crim. Proc.
Law § 460.70; CPLR §§ 5701, 7011; Simpson v. Keyser, No. 20 Civ. 6408 (AJN),
2020 WL 6126391, at *3 (S.D.N.Y. Oct. 14, 2020); Pollack v. Patterson, No. 10
Civ. 6297 (JGK) (JLC), 2012 WL 2369493, at *3 (S.D.N.Y. June 22, 2012). If
the Appellate Division’s decision adversely affects the petitioner, he should then
seek leave to appeal to the New York Court of Appeals, the highest New York
State court. See N.Y. Crim. Proc. Law § 460.20; Simpson, 2020 WL 6126391,
at *3; Pollack, 2012 WL 2369493, at *3.
b.

Petitioner’s Eighth Amendment Claim

Nowhere in his pleadings nor in response to Respondent’s motion to
dismiss does Petitioner state that he has raised a claim pertaining to COVID-19
in any state court proceeding. Furthermore, as Respondent attests, searches
8

of the records of the St. Lawrence County Supreme Court and of OAG have not
located any such filings. (Cieprisz Decl. ¶ 7). Given Petitioner’s burden to
establish exhaustion, see Colon, 19 F. Supp. 2d at 119-20, and his failure to
meet this burden, the Court concludes that Petitioner’s COVID-19 claim is
unexhausted and thus premature. Accord Simpson v. N.Y. State Dep’t of Corr.,
No. 20 Civ. 1363 (GLS) (TWD), 2020 WL 6799370, at *2-3 (N.D.N.Y. Nov. 19,
2020); Brooks v. Wolcott, No. 20 Civ. 516 (JLS), 2020 WL 3103795, at *4-5
(W.D.N.Y. June 11, 2020).
Additionally, Petitioner has not shown good cause for the Court to waive
the exhaustion requirement. In rare cases, a lack of exhaustion may be
excused if “there is an absence of available State corrective process” or
“circumstances exist that render such process ineffective to protect the rights
of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Neither exception applies here.
Petitioner could have filed a petition in state court under CPLR Article 78 or
Article 70, and indeed did file a non-COVID-19-based Article 78 petition in the
St. Lawrence County Supreme Court in March 2020, which petition was denied
on July 29, 2020. (See Cieprisz Decl., Ex. 4). New York state courts have
remained open during the pandemic to handle essential business, including
“emergency applications related to the coronavirus.” (Id. at Ex. 8). Petitions for
release due to COVID-19, brought under CPLR Article 70, have been granted in
certain instances. See Bergamaschi v. Cuomo, No. 20 Civ. 2817 (CM), 2020 WL
1910754, at *4 (S.D.N.Y. Apr. 20, 2020) (“The record reflects that numerous
[CPLR Article 70] petitions have been brought [during the COVID pandemic],
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and many granted by justices of the New York State Supreme Court.”); Tripathy
v. Schneider, 473 F. Supp. 3d 220, 231-32 (W.D.N.Y. 2020) (“[T]he New York
state courts … have been considering and resolving emergency COVID-19
applications for release brought by state inmates and detainees under N.Y.
C.P.L.R. Article 70.” (collecting cases)). Since Petitioner has set forth no basis
to excuse the exhaustion requirement, the Court concludes that his Eighth
Amendment claim related to COVID-19 must be dismissed. The Court
dismisses the claim without prejudice, subject to renewal in a new petition
when Petitioner properly exhausts his state remedies. 3
c.

Petitioner’s Parole Denial Claim

Petitioner likewise has not exhausted his parole denial claim or provided
any basis to excuse his failure to exhaust. “To exhaust a denial of parole
under New York law, the inmate must first file an administrative appeal with
the Division of Parole’s Appeals Unit. If that appeal is denied, he must seek
relief in state court pursuant to Article 78.” Scales v. N.Y. State Div. of Parole,
396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005) (internal quotation marks omitted);
cf. McCullough v. N.Y. State Div. of Parole, No. 11 Civ. 1112 (DNH) (DEP), 2015
WL 2340784, at *4 (N.D.N.Y. Apr. 15, 2015) (addressing the “typical path for
exhausting a claim concerning a petitioner’s parole revocation proceeding”). “If
the Article 78 petition is denied, the petitioner must appeal that denial to the

3

Because the Court concludes that Petitioner’s COVID-19 claim must be dismissed
because it is unexhausted, the Court does not address Respondent’s alternative
argument that the claim is not the proper subject of a habeas corpus petition under 28
U.S.C. § 2254, but rather should be presented as a claim under 42 U.S.C. § 1983. (See
Resp. Br. 9-19).

10

‘highest state court capable of reviewing it.’” Scales, 396 F. Supp. 2d at 428
(quoting Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003)).
Here, Petitioner is in the middle of the appeals process for his parole
denial claim — he submitted an administrative appeal to the Appeals Unit,
which appeal was rejected, and subsequently brought a petition under Article
78 in the St. Lawrence County Supreme Court. However, no decision on
Petitioner’s Article 78 petition has yet been issued. (Cieprisz Decl. ¶ 6).
Petitioner’s claim is thus unexhausted and will remain so until (i) he receives a
decision from the trial court, and (ii) if that decision is adverse, appeals his
claim to the Appellate Division and, (iii) if necessary, to the New York Court of
Appeals.
Here again, Petitioner does not provide, and the Court cannot identify,
any reason why the exhaustion requirement should be waived. Accordingly,
Petitioner’s parole denial claim is brought prematurely and thus is dismissed
without prejudice.
2.

Petitioner’s Challenge to His Underlying Conviction Is Not
Properly Before the Court and Would Be Futile

In a series of letters filed with the Court after the submission of his
original petition, Petitioner has raised concerns regarding the validity of his
1998 guilty plea and conviction. (See Dkt. #8, 10, 17, 28, 32, 36, 37, 39). As
an initial matter, Petitioner did not seek leave to amend his Petition to include
these supplementary claims. Consequently, they are not now properly before
the Court. However, the Second Circuit has directed that “[a] pro se complaint
should not be dismissed without the Court’s granting leave to amend at least
11

once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.’” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d
Cir. 2013) (internal quotation marks and alterations omitted) (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). That said, “[l]eave to amend may
properly be denied if the amendment would be ‘futile.’” Id. at 140 (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
The Court concludes that permitting Petitioner leave to amend would be
futile because Petitioner’s claims regarding his 1998 guilty plea and conviction
are time-barred. Federal law provides that:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of —
(A)
the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
(B)
the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C)
the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D)
the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.

12

28 U.S.C. § 2244(d)(1). This one-year limitations period is tolled while “a
properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending[.]” Id. § 2244(d)(2).
With respect to condition (A), Petitioner’s state court conviction became
final on February 26, 2002, 90 days after the New York Court of Appeals
denied reconsideration of its decision denying his application for leave to
appeal. See People v. Phelps, 97 N.Y.2d 657 (2001). To comply with the
statute of limitations, Petitioner needed to file a federal habeas petition on or
before February 26, 2003. Petitioner did not file a federal habeas petition
before that date, nor did he file any state-court post-conviction applications in
the interim that would have served to toll his time to file a federal habeas
petition. (See Cieprisz Decl. ¶ 8).
The Court sees no basis for the application of conditions (B) or (C). And
as the Court understands from Petitioner’s letters, his claims concern whether
his trial and appellate counsel provided effective assistance, and whether his
guilty plea was knowing and voluntary. Petitioner was aware of the factual
predicate for such claims certainly no later than when the state court judgment
became final, on February 26, 2002. Thus, condition (D) does not save
Petitioner’s claim from untimeliness.
In sum, even if the Court were to permit Petitioner to amend his Petition
to include claims relating to his underlying conviction, such claims would be
subject to dismissal as untimely under 28 U.S.C. § 2244. Amendment would

13

therefore be futile and the Court declines to permit it, Petitioner’s pro se status
notwithstanding.
C.

The Court Denies Petitioner’s Request for a Stay of His Petition
In response to Respondent’s motion to dismiss the Petition, Petitioner

requests that the Court stay this matter, rather than dismiss it, to allow him
the opportunity to exhaust his state court remedies. (See Dkt. #28, 32, 35).
Respondent argues that a stay is not warranted, and that dismissal is
appropriate instead. (See Resp. Stay Opp. 2).
A stay pending exhaustion is not appropriate here because the Petition is
completely unexhausted. See, e.g., Cooper v. Lapra, No. 18 Civ. 9405 (KPF),
2020 WL 3264219, at *2 (S.D.N.Y. June 17, 2020) (dismissing completely
unexhausted petition without prejudice); Baity v. McCary, No. 02 Civ. 1817
(LAP) (AJP), 2002 WL 31433293, at *2 (S.D.N.Y. Oct. 31, 2002) (“Because
[petitioner] has failed to exhaust any of his claims, this Court has no basis to
retain jurisdiction over his unexhausted habeas petition, which should be
dismissed.” (citing Diguglielmo v. Sankowski, 42 F. App’x 492, 496 (2d Cir.
2002) (summary order); Carpenter v. Reynolds, 212 F. Supp. 2d 94, 98
(E.D.N.Y. 2002); Ramos v. Superintendent of Clinton Corr. Facility, No. 01 Civ.
8743 (LAP) (FM), 2002 WL 1226860, at *3 (S.D.N.Y. Apr. 12, 2002))). As such,
the “stay-and-abeyance” procedure approved by the Supreme Court for “mixed
petitions” in which some claims are exhausted and others are unexhausted,
see Rhines v. Weber, 544 U.S. 269, 278 (2005), is not available. The Court

14

therefore declines to grant Petitioner’s requested stay, and instead grants
Respondent’s motion for dismissal.
CONCLUSION
For the reasons given, the Court GRANTS in full Respondent’s motion to
dismiss the Petition and DENIES Petitioner’s request to stay the Petition.
Petitioner’s Eighth Amendment and parole denial claims are DISMISSED
without prejudice, subject to renewal in a separate petition after Petitioner
exhausts his state court remedies. Petitioner is DENIED leave to amend his
petition to include claims regarding the validity of his underlying 1998
conviction.
The Court certifies under 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
(“IFP”) status is denied for the purpose of an appeal. Cf. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates
good faith when he seeks review of a nonfrivolous issue). Furthermore, the
Court declines to issue a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c)(1)(A), as Petitioner has not “made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case. The Clerk of Court is further directed
to mail a copy of this Order to Petitioner’s address of record.

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SO ORDERED.
Dated:

June 7, 2021
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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