Gonzalez v. Lempke

Filing 20

DECISION AND ORDER granting 7 Motion to Dismiss. Accordingly, Petitioners application for a writ of habeas corpus is denied, and the petition is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from th is Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.Signed by Hon. Charles J. Siragusa on 9/2/10. (KAP)

Gonzalez v. Lempke

Doc. 20

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

R A Y M O N D GONZALEZ, 99-A-1878, P e t it io n e r , -vJ O H N B. LEMPKE, ET AL., R e s p o n d e n ts . D E C IS IO N AND ORDER 0 9 -C V -6 4 2 3 CJS

A P P E AR A N C E S F o r Petitioner: R a ym o n d Gonzalez 99-A-1878 pro se F iv e Points Correctional Facility B o x 119 R o m u lu s , NY 14541 P a u l B. Lyons, Esq. O f f ic e of New York State Attorney General 1 2 0 Broadway N e w York, NY 10271 IN T R O D U C T IO N S ir a g u s a , J. Before the Court is a motion to dismiss the pro se petition of Raymond G o n z a le z for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set f o rth below, the § 2254 petition is dismissed. B AC K G R O U N D P r o c e d u r a l History O n February 27, 2004 Petitioner was charged with Assault in the Second Degree (P e n a l Law §120.05(7)) for assaulting Barbara J. Higley, a nurse at Attica Correctional F a c ility. On February 7 and 8, 2005, a trial was held in W yo m in g County Court and a jury f o u n d Petitioner guilty as charged. On May 12, 2005, he was sentenced as a second felony o f f e n d e r to a determinate term of seven years imprisonment followed by five years of post-

F o r Respondent:

Dockets.Justia.com

release supervision, which was to be served consecutively to the sentence he was then s e r v in g . O n December 1, 2005, the Appellate Division, Fourth Department granted Petitioner p e rm is s io n to proceed on his criminal appeal pro se. Petitioner appealed his conviction to th e Appellate Division, which granted him several extensions of time to perfect his appeal. H o w e v e r, on September 6, 2007, the Appellate Division denied him a further extension "with le a v e to renew on or before October 5, 2007 upon a showing of merit (see 22 N.Y.C.R.R. 1 0 0 0 .1 3 [g ])." Order, People v. Gonzalez, Indictment No. 5198 (N.Y. App. Div. 4th Dept. S e p t. 6, 2007). Petitioner failed to renew in accordance with the Appellate Division's order b y the October 5, 2007, and his appeal was subsequently dismissed for failure to perfect. On May 14, 2008, the Appellate Division denied Petitioner's motion to vacate the d is m is s a l of his appeal. Petitioner did not seek leave to appeal the Appellate Division's o rd e rs from the New York State Court of Appeals. W r it of Habeas Corpus O n August 9, 2009, Petitioner filed the pending habeas petition with this Court. P e titio n e r raises the following claims: (1) that he was denied the right to appeal his criminal c o n v ic tio n ; (2) that he was deceived and unlawfully transferred to the Central New York P s yc h ia tric Center and denied access to his legal papers; and (3) that he was denied a fair t r ia l. R e s p o n d e n t counters in his motion to dismiss that: (1) the petition should be d is m is s e d as untimely because it was filed after the statutory limitations period expired, and P e titio n e r has not established grounds for equitable tolling; (2) Petitioner's claims are barred o n adequate and independent state grounds; and (3) Petitioner's claims have not been
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exhausted, and until exhausted, are procedurally barred. D IS C U S S IO N G e n e ra lly, a Federal court will not entertain a habeas corpus petition from a state p ris o n e r unless the prisoner has exhausted state court remedies. Picard v. Connor, 404 U.S. 2 7 0 , 275 (1971) ("It has been settled since Ex parte Royall, 117 U.S. 241 (1886), that state p ris o n e r must normally exhaust available state judicial remedies before a federal court will e n te rta in his petition for habeas corpus."). Exhaustion of state remedies requires p re s e n ta tio n of the claim to the highest state court from which a decision can be obtained. D a y e v. Attorney General of the State of New York, 696 F.2d 186, 191 n.3 (2d Cir. 1982) ("a p e titio n e r need not give the state court system more than one full opportunity to rule on his c la im s ; if he has presented his claims to the highest state court on direct appeal he need not a ls o seek state collateral relief."). In the instant case, Respondent argues that Petitioner has not exhausted his claims. T h e Court agrees. Petitioner, although given extensions to timely perfect his appeal, failed to do so and, therefore, the Appellate Division dismissed his appeal. Thereafter, the A p p e lla te Division denied his motion to vacate the dismissal. In a letter dated December 8, 2 0 0 8 , the Clerk of the New York State Court of Appeals, Stuart M. Cohen, responded to an in q u iry from Petitioner as follows: I have inquired of the office of the Clerk of the Appellate Division, Fourth D e p a rtm e n t about the status of your case, and I have been advised of the f o llo w in g : It appears that, after you failed to meet the deadline set by the Appellate D iv is io n for filing the necessary papers on your appeal, that your appeal was d is m is s e d by virtue of the provision in an order of the Appellate Division that, u p o n failure to comply with the filing deadline, your appeal would be deemed d is m is s e d without further order.
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It further appears that you moved in that court to vacate the dismissal of your a p p e a l and that, in an order dated May 14, 2008, the Appellate Division d e n ie d the motion with leave to renew upon a showing of sufficient facts to d e m o n s tra te a meritorious appeal. A lth o u g h it appears that both the Appellate Division and you understand that yo u r appeal to that court has been dismissed, if you desire a formal order e m b o d yin g that dismissal, your request will have to be directed to that court in a form complying with the requirements of its rules. This office cannot p ro v id e you with such an order and we cannot request one from the Appellate D iv is io n for you. (L e tte r from Stuart M. Cohen to Raymond Gonzalez (Dec. 8, 2008) (Docket No. 9-5, at 72).) T h e re f o re , the record before the Court conclusively establishes that Petitioner did not e x h a u s t his state court remedies. C O N C L U S IO N Accordingly, Petitioner's application for a writ of habeas corpus is denied, and the p e titio n is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that a n y appeal from this Order would not be taken in good faith and leave to appeal to the Court o f Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 444-45 (1 9 6 2 ). Further requests to proceed on appeal in forma pauperis should be directed on m o tio n to the United States Court of Appeals for the Second Circuit in accordance with Rule 2 4 of the Federal Rules of Appellate Procedure. IT IS SO ORDERED. D a te d : S e p te m b e r 2, 2010 R o c h e s te r, New York ENTER: /s / Charles J. Siragusa CHARLES J. SIRAGUSA U N IT E D STATES DISTRICT JUDGE

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