Adams v. Division of Parole, Department of Corrections

Filing 5

ORDER dismissing the Petition without prejudice to filing a new petition once Petitioner's state remedies are exhausted. The Court certifies, that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is Denied. Signed by Hon. Frank P. Geraci, Jr. on 7/6/17. (SG)

PS/CD

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANTHONY ADAMS,
Petitioner,
-v-

16-CV-598-FPG
DECISION AND ORDER

DIVISION OF PAROLE, Department of
Corrections,
Respondent.
___________________________________
Pro se Petitioner Anthony Adams, an inmate of the Five Points Correctional Facility,
seeks relief pursuant to 28 U.S.C. § 2254 and alleges that he is being unconstitutionally held
after a parole violation, as set forth more precisely in his Petition. ECF No. 1. The Court
previously ordered Petitioner to show cause why this Petition should not be dismissed for failure
to exhaust his state remedies. ECF No. 2. Petitioner has now filed an “Opposition to why to
proceed with the Petition” (ECF No. 3) and a letter with attachments showing his attempts to file
a grievance for an alleged assault (ECF No. 4). For the reasons stated below, the Petition must
be dismissed without prejudice.
28 U.S.C. § 2254 requires a petitioner for habeas corpus relief to first exhaust his state
court remedies. A petitioner may exhaust his state court remedies by pursuing his claims
throughout a full round of state post-conviction proceedings. In this case, Petitioner recites that
he was found to have violated the terms of his parole on March 10, 2016 and that he has not filed
any state action challenging his detention. Petitioner states “I was told to file a habeas corpus. I
was told if I filed an appeal. I would of done all the time by the time I got a reply back.” ECF
No. 1 at 5. The Petition further notes that Petitioner was “told to file a habeas corpus to get

quicker results…” ECF No. 1 at 7. Whatever advice Petitioner may have received – or even if
Petitioner was being advised to file an action in state court – that advice does not serve as a
substitute for the exhaustion requirement.
Petitioner’s Exhaustion Response
Petitioner was directed to file an affirmation or affidavit pursuant to the Court’s prior
Order to show why this Petition should not be dismissed for his failure to exhaust state court
remedies.

Petitioner initially filed a two page typewritten explanation and a one page

handwritten letter to the Court explaining that he was injured on March 24, 2016, and has been
denied grievance forms. ECF No. 3 at 1. Petitioner states that he has been transferred to a new
facility and his ability to write a grievance was further delayed because his belongings were
packed up when he was moved. ECF No. 3 at 2.
Petitioner also stated that he is attempting to copy “letters of authenticity” to verify the
difficulties he has had filing his grievances. ECF No. 3 at 3. Petitioner has now filed these
documents, which relate to Petitioner’s attempts to file a grievance concerning an incident in
which his collar bone was broken. See ECF No. 4. However, his alleged injuries are unrelated
to this action, and are unrelated to his failure to exhaust state court remedies.
28 U.S.C. § 2254(b)(1)(A) provides that “[a]n application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless
it appears that the applicant has exhausted the remedies available in the courts of the state.” A
habeas petitioner ‟must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Typically, this means that federal habeas claims must have
been included in both the petitioner’s appeal to the state’s intermediate appellate court and in an

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application for permission to appeal to the state’s highest court. O'Sullivan, 526 U.S. at 848.
Here, Petitioner has stated that did not make an application to any state authority of any kind
because these proceedings are, in his view, too slow.
In his Response and subsequent documents, Petitioner explains the delay in filing other
extraneous, papers, but his initial statement that he has not yet begun the process of exhausting
his state remedies remains uncontradicted. The Court will therefore remind Petitioner that he is
required to complete that state court exhaustion process before he can bring a habeas petition in
federal court.
The Petition itself makes it clear that it was filed prior to the exhaustion of Petitioner’s
state remedies as a result of his conscious decision to pursue relief under 28 U.S.C. § 2254
instead of pursuing state remedies, in the mistaken belief that this was the quicker legal route to
release. Petitioner’s Response confirms this and, under the habeas statute, exhaustion is a
jurisdictional requirement.

The Petition is therefore dismissed for failure to exhaust state

remedies.
This dismissal does not constitute a dismissal on the merits for purposes of 28 U.S.C. §
2244(b) and therefore would not preclude the filing of another Petition once Petitioner has
exhausted his state remedies.
Petitioner has again alleged misconduct by prison officials and made various allegations,
including assault, concerning mistreatment by corrections officers. Petitioner indicates that he
has since been moved to a different facility. In its prior Order, the Court directed the Clerk of
Court to send forms to Petitioner to permit him to raise such claims in a complaint under
42 U.S.C. § 1983. The Clerk of Court will once again be directed to send to Petitioner with this
Order a blank § 1983 complaint form, and the instructions for preparing a complaint. Petitioner,

3 

who has shown no difficulty in filing paper with this Court, is ad
d
rs
dvised that 4 U.S.C. § 1983,
42
not 28 U.S.C. § 2254 is the pro
U
4,
oper way to seek redress of any con
s
nstitutional v
violations he may
e
have suff
fered while in prison.
i
ORDER
O
IT IS HEREB ORDER
T
BY
RED, that the Petition is DISMISSE WITHOU PREJUD
s
ED
UT
DICE
to filing a new petitio once Petit
on
tioner’s state remedies a exhausted
e
are
d;
FURTHER, that the Cle of Court is directed to send to Petitioner w this Or
t
erk
t
with
rder a
blank § 1983 compla form, an the instruc
1
aint
nd
ctions for pre
eparing a co
omplaint;
FURTHER, that the Cou hereby ce
t
urt
ertifies, purs
suant to 28 U
U.S.C. § 191
15(a)(3), tha any
at
appeal fr
rom this Ord would not be taken in good fai and leav to appeal to the Cou of
der
n
n
ith,
ve
urt
Appeals as a poor pe
erson is den
nied. Coppe
edge v. Unite States, 36 U.S. 438 (1962). Fu
ed
69
8
urther
a
erson should be directe on motio to the U
d
ed,
on,
United
requests to proceed on appeal as a poor pe
States Co of Appe for the Second Circuit, in accor
ourt
eals
S
rdance with Rule 24 of t Federal R
the
Rules
of Appellate Procedu
ure.
IT IS SO ORD
T
DERED.
DATED:
:

July 6, 2017
6
Roche
ester, New York
Y
__________
__________
___________
__________
_
HON. FRAN P. GER
ANK
RACI, JR.
Chief Judge
e
United State District C
es
Court

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