Sabino v. Port Authority Police Department

Filing 4

ORDER: The Court directs Petitioner to notify the Court in writing, within 30 days, whether he wishes to withdraw this application (ECF 2) rather than have it recharacterized as a Section 2241 petition. For Petitioner's convenience, a declaration form is attached. Petitioner's written response must be submitted to this Court's Pro Se Intake Unit within 30 days of the date of this order, and bear the same docket number as this order, 22-CV-6229 (LTS). If Petitioner does not wish to have the application recharacterized as a Section 2241 petition, or does not respond within 30 days (or seek an extension of time to respond), the Court will dismiss this action without prejudice. Because Petitioner has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 2253. 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 status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Laura Taylor Swain on 8/1/2022) (sac)

Case 1:22-cv-06229-LTS Document 4 Filed 08/01/22 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAUL SABINO,
Petitioner,
-againstPORT AUTHORITY POLICE
DEPARTMENT,

22-CV-6229 (LTS)
ORDER

Respondent.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Petitioner is currently detained at the Anna M. Kross Center on Rikers Island. He filed a
notice of removal of his criminal proceeding, People v. Sabino, Case No. 01504-2020, which is
pending in the Criminal Term of the New York Supreme Court, New York County. The removed
action was opened in this Court under docket number 22-CV-5025 (LTS), and it has since been
remanded to state court.
In the 800-page notice of removal, Petitioner referred to 28 U.S.C. § 2241 and appears to
challenge his custody based on, among other reasons, alleged violations of the Double Jeopardy
Clause and his right to a speedy trial. It therefore appears that, although this filing was titled as a

notice of removal, Petitioner may have intended to bring a petition for a writ of habeas corpus
under 28 U.S.C. § 2241, in addition to removing his criminal proceedings. On this basis, the
Court directed, in the removed action under docket number 22-CV-5025 (LTS), that a new action
be opened. Petitioner’s application thus has been filed as a petition for a writ of habeas corpus
under Section 2241 in this new action.
A petition for a writ of habeas corpus under Section 2241 is available to persons “in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). “A petition for a writ of habeas corpus under [Section] 2241 is generally

Case 1:22-cv-06229-LTS Document 4 Filed 08/01/22 Page 2 of 5

considered the proper vehicle for a state pretrial detainee who argues that he is in custody in
violation of the Constitution or federal law.” Griffin v. Warden of Otis Bantum Corr. Ctr., No. 20CV-1707 (AJN) (SLC), 2020 WL 1158070, at *2 (S.D.N.Y. Mar. 10, 2020) (relying on
McDonough v. Smith, 139 S. Ct. 2149, 2157 n.6 (2019) (noting that “a petition for a writ of
habeas corpus . . . is the appropriate remedy for state prisoners attacking the validity of the fact
or length of their confinement, . . . including confinement pending trial before any conviction has
occurred”(internal citation omitted)); United States ex rel. Scranton v. New York, 532 F.2d 292,
293 (2d Cir. 1976) (characterizing pretrial application challenging state court retrial, following a
mistrial, as a Section 2241 petition). 1
Before recharacterizing an application brought under some other statute as a Section 2241
petition, the Court is obligated to inform Petitioner of the Court’s intent to do so and allow him
an opportunity to withdraw it. See Simon v. United States, 359 F.3d 139, 144 (2d Cir. 2004)
(“Future decisions of this court will more clearly delimit what constraints, if any, apply to the
filing of a second or successive § 2241 petition in our circuit.”). 2 The Court therefore directs
Petitioner to notify the Court in writing, within 30 days, whether he wishes to withdraw this
application (ECF 2) rather than have it recharacterized as a Section 2241 petition.

1

A section 2241 petition, however, cannot be used to “permit the derailment of a pending
state proceeding by an attempt to litigate constitutional defenses prematurely in federal court.”
Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 493 (1973).
2

For Petitioner’s benefit, the Court notes that, before seeking habeas corpus relief under
Section 2241, a state pretrial detainee must first exhaust available state-court remedies. See
United States ex rel. Scranton, 532 F.2d at 294 (“While [Section 2241] does not by its own terms
require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief,
decisional law has superimposed such a requirement in order to accommodate principles of
federalism.”).
2

Case 1:22-cv-06229-LTS Document 4 Filed 08/01/22 Page 3 of 5

CONCLUSION
The Court directs Petitioner to notify the Court in writing, within 30 days, whether he
wishes to withdraw this application (ECF 2) rather than have it recharacterized as a Section 2241
petition. For Petitioner’s convenience, a declaration form is attached.
Petitioner’s written response must be submitted to this Court’s Pro Se Intake Unit within
30 days of the date of this order, and bear the same docket number as this order, 22-CV-6229
(LTS). If Petitioner does not wish to have the application recharacterized as a Section 2241
petition, or does not respond within 30 days (or seek an extension of time to respond), the Court
will dismiss this action without prejudice.
Because Petitioner has not at this time made a substantial showing of a denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
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 status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

August 1, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

3

Case 1:22-cv-06229-LTS Document 4 Filed 08/01/22 Page 4 of 5

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

Write the first and last name of each plaintiff or
petitioner.
Case No.

CV

-against-

Write the first and last name of each defendant or
respondent.

DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s
Motion for Summary Judgment,” or “in Response to Order to Show Cause.”
I,

, declare under penalty of perjury that the

following facts are true and correct:
In the space below, describe any facts that are relevant to the motion or that respond to a court
order. You may also refer to and attach any relevant documents.

Rev. 10/3/16

Case 1:22-cv-06229-LTS Document 4 Filed 08/01/22 Page 5 of 5

Attach additional pages and documents if necessary.

Executed on (date)

Signature

Name

Prison Identification # (if incarcerated)

Address
Telephone Number (if available)

City

State

Zip Code

E-mail Address (if available)

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