Opinion
20-CV-07361 (CM)(SN)
06-23-2021
SAMUEL ACEVEDO, et al., Petitioners, v. MICHAEL CAPRA, Respondent.
REPORT & RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE COLLEEN MCMAHON:
Nineteen individuals held in New York State Department of Corrections and Community Supervision prisons (“Petitioners”) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. They seek temporary release from state custody, asserting that they are at increased risk of serious illness or death due to the COVID-19 pandemic and their advanced age and/or preexisting medical conditions. Respondent moves to dismiss the petition, arguing that Petitioners have not stated a cognizable claim under 28 U.S.C. § 2254 or, in the alternative, that Petitioners have not exhausted available state court remedies. See ECF No. 12. I recommend that Respondent’s motion to dismiss be GRANTED.
BACKGROUND
I. Factual Background
Petitioners are 19 men who-except for Petitioner B.B. -are incarcerated at Sing Sing Correctional Facility in Westchester County, New York, following judgments of conviction. See ECF No. 1 (“Pet.”) at ¶ 2. All Petitioners are individuals who, due to their age or preexisting health conditions, are at higher risk of severe illness or death if they were to contract COVID-19. Pet. at ¶ 42.
The Court granted Petitioners A.A. and B.B.’s motion to proceed under pseudonym. See ECF No. 20.
Petitioners’ ages are from the time the Petition was filed.
Petitioner Samuel Acevedo is 51 years old and suffers from asthma and hypertension. Id. at ¶ 44. He was convicted of second-degree murder in New York County in 2003 and sentenced to 25 years to life in prison. Id. at ¶ 43. His conviction was affirmed on appeal, People v. Acevedo, 841 N.Y.S.2d 55 (1st Dep’t), lv. denied, 9 N.Y.3d 1004 (2007), and his subsequent habeas corpus petition was denied in 2011, Acevedo v. Smith, No. 08-cv-09899 (SAS), 2011 2011 WL 476607 (S.D.N.Y. Feb. 8, 2011).
Petitioner Tyrone Bowman is 57 years old. Pet. at ¶ 47. He is serving a 25-years-to-life sentence after a 2004 conviction for second-degree murder in New York County. Id. at ¶ 46. His conviction was affirmed on appeal, People v. Bowman, 847 N.Y.S.2d 536 (1st Dep’t 2007), lv. denied, 10 N.Y.3d 808 (2008), and his habeas corpus petition was denied in 2011, Bowman v. Ercole, No. 09-cv-04801 (RJH) (THK), 2011 WL 1419614 (S.D.N.Y. Apr. 11, 2011) (adopting report and recommendation).
Petitioner Bruce Bryant is 50 years old and suffers from chronic bronchitis. Pet. at ¶ 49. He was convicted in 1996 of second-degree murder and attempted second-degree murder in Queens County and is currently serving a 37-years-to-life sentence in prison. Id. at ¶ 48. His conviction was affirmed on appeal, People v. Bryant, 765 N.Y.S.2d 26 (2d Dep’t), lv. denied, 1 N.Y.3d 569 (2003), and his petition for writ of habeas corpus was denied in 2007, Bryant v. Phillips, No. 05-cv-01641 (FB), 2007 WL 4378132 (E.D.N.Y. Dec. 11, 2007).
Petitioner Corneal Cordon is 53 years old. Pet. at ¶ 52. As of September 2020, Cordon was eligible for release on parole after being sentenced to 25 years to life in prison following a 1997 conviction of three counts of first-degree burglary and other charges in New York County. Id. at ¶ 51. His conviction was affirmed on appeal, People v. Cordon, 691 N.Y.S.2d 390 (1st Dep’t), lv. denied, 93 N.Y.2d 1016 (1999). His petition for writ of habeas corpus was denied., Cordon v. Grenier, No. 00-cv-08927 (WK), 2001 WL 775962 (S.D.N.Y. July 9, 2001), aff’d, 225 F. App’x 13 (2d Cir. 2007).
Petitioner Eric Davidson, 50, suffers from chronic asthma and shortness of breath. Pet. at ¶ 54. He was convicted in 2012 of two counts of second-degree burglary in New York County and sentenced to concurrent minimum sentences of 16 years to life in prison. Id. at ¶ 53. His conviction was affirmed on appeal, People v. Davidson, 995 N.Y.S.2d 64 (1st Dep’t 2014), lv. denied, 25 N.Y.3d 988 (2015); his subsequent habeas corpus was denied, Davidson v. Capra, No. 15-cv-09840 (LGS), 2019 WL 2342980 (S.D.N.Y. May 31, 2019) (adopting report and recommendation).
Petitioner Herbert Deas, 63, has struggled with substance abuse for many decades. Pet. at ¶ 57. He was convicted in 2011 of second-degree burglary and second-degree robbery in New York County and sentenced to a minimum aggregate term of 16 years to life. Id. at ¶ 56. His conviction was affirmed on appeal. People v. Deas, 961 N.Y.S.2d 10 (1st Dep’t), lv. denied, 20 N.Y.3d 1097 (2013). His habeas corpus petition was denied. Deas v. Capra, No. 15-cv-01306 (VSB) (SN), 2016 WL 6242819 (S.D.N.Y. Oct. 24, 2016) (adopting report and recommendation).
Petitioner Reggie Edwards is 52 years old. Pet. at ¶ 60. He was convicted in 1999 in New York County of second-degree murder and sentenced to a term of 25 years to life. Id. at ¶ 60. His conviction was affirmed on appeal, People v. Edwards, 722 N.Y.S.2d 160 (1st Dep’t) (Mem.), lv. denied, 96 N.Y.2d 828 (2001), and his petition for a writ of habeas corpus was denied, Edwards v. Portuondo, No. 02-cv-06253 (KMW), 2005 WL 2333626 (S.D.N.Y. Sept. 21, 2005).
Petitioner Jerome Johnson suffers from asthma, hypertension, and Type-2 Diabetes. Pet. at ¶ 62. He is serving a term of 25 years to life in prison after a 2005 conviction in New York County of first-degree robbery. Id. at ¶ 61. His conviction was affirmed on direct appeal. People v. Johnson, 830 N.Y.S.2d 134 (1st Dep’t), lv. denied, 8 N.Y.3d 986 (2007).
Petitioner Eugene Kindell, who is 74, suffers from diabetes and hypertension, and has previously suffered heart attacks and strokes. Pet. at ¶ 64. He is serving an aggregate sentence of 19.5 to 21 years in prison after he was convicted in 2011 of second-degree burglary, attempted second-degree burglary, and bail jumping in New York County. Id. at ¶ 63. His conviction was affirmed on direct appeal. People v. Kindell, 49 N.Y.S.3d 116 (1st Dep’t), lv. denied, 29 N.Y.3d 1082 (2017). He filed a petition for habeas corpus in this court on January 13, 2020, which remains pending. Kindell v. Capra, No. 20-cv-00304 (RA) (S.D.N.Y. filed Jan. 13, 2020).
Petitioner A.A. is 50 years old and HIV Positive. Pet. at ¶ 67. He was convicted in 2000 in Bronx County of second-degree murder and sentenced to 25 years to life in prison. Id. at ¶ 66. According to Respondent, A.A.’s conviction was affirmed by the Appellate Division, First Department, in December 2002, and his prior federal habeas petition was denied in December 2010. See ECF No. 13 at 2 n.5, 3 n.6.
Petitioner Anthony Puckett, 59, suffers from hypertension. Pet. at ¶ 70. He is serving an aggregate term of 40 years in prison after he was convicted in 1997 in New York County of two counts of second-degree burglary. Id. at ¶ 69. His conviction was affirmed on appeal. People v. Puckett, 697 N.Y.S.2d 252 (1st Dep’t), lv. denied, 94 N.Y.2d 865 (1999). His federal habeas corpus petition was denied in 2004. Puckett v. Senkowski, No. 01-cv-11844 (AKH), 2004 WL 840295 (S.D.N.Y. Apr. 19, 2004).
Petitioner Nelson Rodriguez, 56, suffers from gout, neurological tremors, mesenteric panniculitis, near syncope, and obesity. Pet. at ¶ 73. He was convicted in 2009 in New York County of one count of first-degree course of sexual conduct with a child and sentenced to a 23-year term of imprisonment. Id. at ¶ 72. Rodriguez’s conviction was affirmed on direct appeal. People v. Rodriguez, 73 N.Y.S.3d 555 (1st Dep’t), lv. denied, 31 N.Y.3d 1121 (2018). Rodriguez filed a federal habeas petition on May 8, 2019, which remains pending. Rodriguez v. Capra, No. 19-cv-04171 (VSB) (SN) (S.D.N.Y. filed May 8, 2019).
Petitioner B.B., 57, has Hepatitis C and is HIV positive, which required him to be hospitalized in December 2019. Pet. at ¶ 76. He was convicted in 1997 in New York County of felony murder and robbery and subsequently sentenced to 37 years to life in prison. Id. at ¶ 75. According to Respondent, B.B.’s conviction was affirmed on direct appeal by the Appellate Division, First Department, in September 1999, ECF No. 13 at 2 n.5, and his federal habeas petition was denied in December 2004, Id. at 3 n.6.
Petitioner Victor Rondon is 54 years old. Pet. at ¶ 79. He was convicted in 2008 in New York County of first-degree rape and other charges and was sentenced to 25 to 50 years in prison. Id. at ¶ 78. His conviction was affirmed on direct appeal in 2010. People v. Rondon, 898 N.Y.S.2d 128 (1st Dep’t), lv. denied, 15 N.Y.3d 855 (2010).
Petitioner Wilfredo Ruiz is 52 years old and suffers from chronic chest pain and high blood pressure, and he previously required treatment for an erratic heartbeat. Pet. at ¶ 81. He was convicted in 2001 of second-degree robbery and sentenced to a term of 24 years to life in prison. Id. at ¶ 80. His conviction was also affirmed on appeal. People v. Ruiz, 752 N.Y.S.2d 881 (1st Dep’t) (Mem.), lv. denied, 99 N.Y.2d 658 (2003). His federal habeas petition was denied. Ruiz v. Poole, 566 F.Supp. 2d 336 (S.D.N.Y. 2008).
Petitioner Epifanio Santiago is 53 years old. Pet. at ¶ 84. He was convicted in 2014 in New York County of criminal sale of a controlled substance in the first, second, and third degrees (among other charges) and sentenced to 13 years in prison. Id. at ¶ 83. His conviction was affirmed on appeal. People v. Santiago, 51 N.Y.S.3d 416 (1st Dep’t) (Mem.), lv. denied, 29 N.Y.3d 1094 (2017). Santiago works in hazardous waste removal for the Sing Sing Hospital. Pet. at ¶ 84.
Petitioner Lance Sessoms, 54, suffers from hypertension and obesity. Id. at ¶ 86. He was convicted in 1988 in Albany County of three counts of second-degree murder and sentenced to 75 years to life in prison. Id. at ¶ 85. His conviction was affirmed on direct appeal. People v. Sessoms, 607 N.Y.S.2d 150 (3d Dep’t), lv. denied, 83 N.Y.2d 915 (1994).
Petitioner Michael Sims is 51 years old and has asthma. Pet. at ¶ 89. He was convicted in 1994 in Bronx County of first-degree robbery, and again in 1995 in Suffolk County of second-degree murder; he is serving an aggregate sentence of 37 years to life in prison. Id. at ¶ 88. His conviction was affirmed on appeal. People v. Sims, 666 N.Y.S.2d 433 (2d Dep’t 1997) (Mem.), lv. denied, 91 N.Y.2d 1013 (1998).
Petitioner Jose Tayo is 63 years old. Pet. at ¶ 92. He was convicted in 2013 in Bronx County of second-degree murder and is currently serving a sentence of 25 years to life in prison. Id. at ¶ 91. Tayo’s conviction was affirmed on direct appeal. People v. Tayo, 18 N.Y.S.3d 625 (1st Dep’t 2015), lv. denied, 26 N.Y.3d 1151 (2016).
II. Procedural History
A. State Proceedings
On May 8, 2020, Petitioners sought temporary release from incarceration by filing an ex parte order to show cause under New York Civil Practice Law and Rules (“CPLR”) § 7001, et seq. for state habeas relief in the Westchester County Supreme Court. Pet. at ¶ 3; ECF No. 1, Ex. 1 (“A”) at 33–52.
Three days later, on May 11, 2020, Petitioners’ counsel received an email from the secretary of the Honorable Susan Cacace, informing counsel that the court had declined to sign the order to show cause. A29. The email stated that the court had determined that the “Order to Show Cause d[id] not raise a legitimate allegation of an illegal detention as required by” CPLR Article 70, and that there was no “legally sufficient claim.” Id. The Petitioners immediately requested a written order from the court. A28. While that request was pending, Petitioners filed an appeal under CPLR § 7011 of the May 11, 2020 email. ECF No. 12, Ex. 6. That appeal remains pending but unperfected. The deadline to perfect the appeal was December 9, 2020.
Meanwhile, on July 13, 2020, the Westchester County Supreme Court finally issued an order declining to sign the May 8, 2020 ex parte order to show cause. A26–A27. Four days later, Petitioners filed an appeal pursuant to CLPR § 5704(a) of that order. A7–A25. On July 20, 2020, a single justice of the Appellate Division denied that application. A1–A2. Plaintiffs never appealed the July 13, 2020 order pursuant to CPLR § 7011.
B. Federal Proceedings
On September 9, 2020, Petitioners filed this habeas petition under 28 U.S.C. § 2254, seeking temporary release from prison due to the COVID-19 pandemic. This Court ordered the State to respond to the Petition. See ECF No. 6.
On November 25, 2020, Respondent moved to dismiss the petition, arguing that: (1) a conditions of confinement claim does not support habeas relief; and (2) Petitioners have failed to exhaust available state court remedies. ECF No. 13. Respondent also argues that, if the petition is not dismissed, Petitioners Kindell, Rodriguez, and B.B. should proceed in separate actions. Id.
DISCUSSION
The COVID-19 pandemic has hit congregate facilities like prisons far harder than the general population. Endemic prison problems like overcrowding and poor medical care have allowed the virus to spread more easily. People in prisons also tend to have higher rates of chronic health problems, including diabetes, high blood pressure, and HIV, meaning that the virus settled in an environment primed for easy transmission with a population likely to suffer more seriously. This confluence of vulnerabilities has had devastating outcomes inside correctional facilities and the communities that surround them. Petitioners, therefore, assert that due to their age, pre-existing medical conditions, and the conditions of their confinement, their continued incarceration violates the Eighth Amendment to the U.S. Constitution.
The COVID-19 infection rate inside American prisons is 34 in 100, compared to 9 in 100 in the United States and 2 in 100 worldwide. Eddie Burkhalter et al., Incarcerated and Infected: How the Virus Tore through the U.S. Prison System, N.Y. Times (April 10, 2021), https://www.nytimes.com/interactive/2021/04/10/us/covid-prison-outbreak.html.
See Am. Academy of Family Physicians, Incarceration and Health: A Family Medicine Perspective (Position Paper), https://www.aafp.org/about/policies/all/incarceration.html (last visited April 15, 2021).
I. Whether the Petitioners’ Claims are Properly Brought Under § 2254
Respondent asserts that Petitioners’ claim should be dismissed because it challenges the conditions of their confinement and therefore is not cognizable under a habeas corpus petition brought pursuant to 28 U.S.C. § 2254. See ECF No. 13 at 14–24. He argues it should have instead been brought as a suit under 42 U.S.C. § 1983. Id. This Court, like other courts before it, does not recommend dismissing the Petition on this basis. See, e.g., Slater v. Keyser, No. 20-cv 03012 (KPF), 2020 WL 4016759, at *3–4 (S.D.N.Y. July 16, 2020) (declining to dismiss petition on the basis that a § 2254 habeas corpus petition was not the proper vehicle for the relief sought); Elleby v. Smith, No. 20-cv-02935 (PAE), 2020 WL 2611921, at *2–3 (S.D.N.Y. May 22, 2020) (same); Tripathy v. Schneider, 473 F.Supp. 3d 220, 226–28 (W.D.N.Y. 2020) (denying the state’s motion to dismiss on this argument).
A prisoner seeking relief from his imprisonment has “two main avenues”: a petition for habeas corpus under 28 U.S.C. § 2254, and a complaint under 42 U.S.C. § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity of any confinement or to particulars affecting its duration” fall under the purview of habeas corpus, while “requests for relief turning on circumstances of confinement may be presented in a § 1983 action.” Id. (emphasis added).
A petition for writ of habeas corpus permits an individual in custody to challenge the legality of his custody and secure his release if the custody is deemed to be illegal. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). When petitioners seek to “shorten[] the length of their actual confinement in prison” and attack their physical confinement, “however imposed and whether or not related to conviction by a court,” the appropriate avenue for relief is through the writ of habeas corpus. Id. at 487, 488 n.8.
An action under § 1983, on the other hand, is the mechanism by which prisoners can “protest[] against prison conditions,” without necessarily seeking release. Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir. 1977); see also Preiser, 411 U.S. at 499 (noting that a “§ 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody”).
The Supreme Court, however, has not foreclosed the availability of the writ to challenge prison conditions and has recognized that habeas corpus could lie “to remove the restraints making . . . custody illegal” when “a prisoner is put under additional and unconstitutional restraints during his lawful custody.” Preiser, 411 U.S. at 499; see also Williams, 556 F.2d at 1150 n.3 (noting that the Supreme Court has “reserved the question whether habeas might also be available to attack prison conditions”). The Court of Appeals for the Second Circuit has also recognized this expanded range of remedies by way of habeas corpus. See Boudin v. Thomas, 732 F.2d 1107, 1111 (2d Cir. 1984) (“[H]abeas is the appropriate action to challenge conditions of confinement where the prisoner seeks to be moved in order to remedy past constitutional violations.”).
Habeas corpus is not only the traditional mechanism for the relief Petitioners seek, but there is also a strong public policy reason for such challenges to be brought under the habeas statute. Before a federal court can grant habeas relief, a petitioner must first bring any constitutional challenges to the state courts, so that the state court can correct its own constitutional errors. Preiser, 411 U.S. at 490. Although Petitioners are not raising challenges to their state court convictions, “the result must be the same in the case of a state prisoner’s challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action.” Id. at 489; Id. at 491 (noting that “comity considerations are not limited to challenges to the validity of state court convictions”) (citations omitted). As the Supreme Court has recognized, “[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Id. at 491–92. It would seem contrary to this policy, therefore, to push resolution of COVID-19 concerns to a § 1983 action where there is no state court exhaustion requirement, thereby bypassing the State when the substance of the claim relates to the practices and problems in state prisons. See Id. at 492.
At its core, the writ of habeas corpus challenges the “constitutionality of [a petitioner’s] physical confinement . . . and seeks either immediate release from that confinement or the shortening of its duration.” Id. at 489. And here, as in Slater and Elleby, Petitioners do not seek the Court’s assistance in improving or changing any conditions in the prison; they seek “immediate release from custody.” Slater, 2020 WL 4016759, at *1; Elleby, 2020 WL 2611921, at *2; see Pet. at 24–25. Thus, Petitioners’ claims for release from prison “fall ‘squarely within th[e] traditional scope of habeas corpus.’” Llewellyn v. Wolcott, No. 20-cv-00498 (JLS), 2020 WL 2525770, at *4 (W.D.N.Y. May 18, 2020) (quoting Preiser, 411 U.S. at 487); see also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (“Preiser found an implied exception to § 1983’s coverage where the claim seeks-not where it simply ‘relates to’-‘core’ habeas corpus relief, i.e., where a state prisoner requests present or future release.”)
Nevertheless, Respondent raises the argument that, although Petitioners seek release, it is in response to prison conditions, and therefore this claim falls within the purview of § 1983. Respondent relies primarily on Fielding v. LeFevre, 548 F.2d 1102 (2d Cir. 1977). See ECF No. 13 at 16–19. In that case, an individual incarcerated in a state prison brought a claim for habeas relief following his state conviction, arguing that his imprisonment was a violation of the Eighth Amendment because he could not access the psychiatric services he needed and because he was at heightened risk of assault from other incarcerated individuals. Id. at 1108–09. The Court of Appeals concluded that the petitioner’s remedy, if any, lay in § 1983, not habeas corpus. Id. at 1108 (“Assuming, arguendo, that there is an obligation to provide such treatment, the proper remedy is a suit under 42 U.S.C. § 1983 to compel the state to afford prisoners access to psychotherapy.”)
Petitioners assert that Fielding relates to claims where the remedy to correct the harm did not require release from prison, while their claim seeks release because there is no other remedy the state could provide. See ECF No. 15 at 4–5. The petitioner in Fielding sought release to address the unavailability of psychiatric care in prison, but that harm could be remedied short of release. Whereas the harm Petitioners seek to correct-the spread of the deadly coronavirus throughout a congregate setting-cannot be remedied short of immediate release. See Pet. at ¶¶ 28, 33 (asserting that the state “cannot change the basic design and operations of prison facilities” in order to avoid the risk of rapid COVID-19 transmission among incarcerated individuals and prison staff). Therefore, Fielding’s holding is not squarely on point, as Respondent contends.
Respondent also cites Kielly v. Fitzpatrick, No. 20-1496, ECF No. 20 (2d Cir. June 4, 2020). There, the Court of Appeals denied the petitioner’s motion to file a second or successive habeas petition and, “to the extent the petition raises a claim concerning the lawfulness of Petitioner’s current conditions of confinement, such as one properly brought pursuant to 42 U.S.C. § 1983,” remanded the case to the district court. Id. But this Court is of the same mind with other courts that have concluded that the Court of Appeals’ summary order in Kielly does not “stand for the proposition that a habeas petition is an improper vehicle for a conditions of confinement claim seeking release; instead, the court merely directed the district court to examine, in the first instance, whether the petition in that case had set forth a valid conditions of confinement claim.” Steward v. Wolcott, No. 20-cv-06282 (FPG), 2020 WL 3574617, at *2 (W.D.N.Y. July 1, 2020); see also Tripathy, 473 F.Supp. 3d at 227–28.
The question of whether prisoners should proceed under a § 2254 petition for writ of habeas corpus or a § 1983 complaint is one that has been considered by many courts in this Circuit and in our sister circuits during the COVID-19 pandemic and the attendant requests for release from detained individuals. See Elleby, 2020 WL 2611921, at *3 (noting split and collecting cases). Several courts in this Circuit have held that habeas corpus is the appropriate mechanism to seek release in circumstances like the ones in this case. See, e.g., Carter v. Fields, No. 19-cv-05364 (PKC), 2020 WL 5517241, at *1 (E.D.N.Y. Sept. 14, 2020) (rejecting the argument that a petitioner “may not bring a habeas claim based on conditions of confinement and that he is limited to seeking relief pursuant to 42 U.S.C. § 1983”); Llewellyn, 2020 WL 2525770, at *4; Tripathy, 473 F.Supp. 3d at 228; Simpson v. N.Y. State Dep’t of Corr., No. 9:20-cv-01363 (GLS) (TWD), 2020 WL 6799370, at *2 (N.D.N.Y. Nov. 19, 2020) (considering petitioner’s request for release due to the COVID-19 pandemic as a challenge to “execution of his state-imposed sentence,” and determining that “the present petition must be brought pursuant to § 2254”). Other courts, noting the open nature of the question, have deferred ruling on the question. See, e.g., Slater, 2020 WL 4016759, at *4.
Given that this question remains unsettled, and the Petition suffers from fatal exhaustion problems, I recommend that the Court assume that Petitioners may pursue release as a remedy in this habeas petition. See, e.g., Elleby, 2020 WL 2611921, at *3 (declining to dismiss the § 2254 petition on the grounds that it is an improper vehicle in part because of a “independent infirmity” with the petition). Accordingly, I would deny Respondent’s motion to the extent it seeks dismissal of the petition as improperly plead.
II. Exhaustion of State Remedies
Respondent also asserts that Petitioners have failed to exhaust their state habeas claim. Petitioners have approached their exhaustion obligation in an unconventional manner. In the Court’s view, those efforts were insufficient to establish exhaustion of the State’s remedies.
A. The Exhaustion Requirement
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. . . . ” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see 28 U.S.C. § 2254(b)(1)(A) (“An 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 . . . .”). Therefore, in a properly exhausted federal habeas claim, the petitioner would have “fairly present[ed] 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, 541 U.S. at 29 (citations and quotation marks omitted); see also 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (“To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims ‘to the highest court of the pertinent state.’” (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990))).
This exhaustion requirement is grounded in the principle of federal-state comity. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (noting that exhaustion is “rooted in a policy of fostering federal-state comity”), overruled on other grounds, Daye v. Att’y Gen. of N.Y., 696 F.2d 186 (2d Cir. 1982) (en banc); see also Rose v. Lundy, 455 U.S. 509, 518 (1982) (noting that “federal courts apply the doctrine of comity, which ‘teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter’” (quoting Darr v. Burford, 339 U.S. 200, 204 (1950))); Strogov v. Att’y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999). “The exhaustion doctrine recognizes that state courts, no less than federal courts, are bound to safeguard the federal rights of state criminal defendants.” Daye, 696 F.2d at 191; see also Picard v. Connor, 404 U.S. 270, 275 (1971) (explaining that the exhaustion rule serves to “prevent ‘unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution’” (quoting Ex Parte Royall, 117 U.S. 241, 251 (1886))).
Thus, the exhaustion requirement provides state courts with the first opportunity to “pass upon and correct alleged violations” of the federal rights of the individuals incarcerated in the state’s name. Baldwin, 541 U.S. at 29 (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)); accord Valenzuela v. Keyser, No. 19-cv-03696 (KMK), No. 20-cv-03077 (KMK), 2020 WL 3839697, at *3 (S.D.N.Y. July 8, 2020); United States ex rel. Savino v. Flood, 482 F.Supp. 228, 230–31 (E.D.N.Y. 1979).
Analysis of the exhaustion requirement proceeds in two steps. See McCray v. Bennet, No. 02-cv-00839 (LTS) (HBP), 2005 WL 3182051, at *7 (S.D.N.Y. Nov. 22, 2005). “First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim” now brought before the federal court. Klein, 667 F.2d at 282; see Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001); accord Valenzuela, 2020 WL 3839697, at *3. “Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim.” Klein, 667 F.2d at 282; see also Aparicio v. Artuz, 269 F.3d 78, 89–90 (2d Cir. 2001).
There are two circumstances in which a petitioner may be exempted from the exhaustion requirement: first, if “there is an absence of available State corrective process”; or, second, if “circumstances exist that render such process inefficient to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)–(ii). In essence, then, the exhaustion requirement is waived for a petitioner “[w]here there is no further state proceeding for petitioner to pursue” or “where further pursuit would be futile.” Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000); accord Elleby, 2020 WL 2611921, at *4.
When neither exception applies, a court may dismiss an unexhausted petition without prejudice, thereby “allowing [the] petitioner to assert his unexhausted claims in state court.” Oquendo v. Senkowski, 452 F.Supp. 2d 359, 368 (S.D.N.Y. 2006).
B. Exhaustion in New York State Courts
In New York, there are many ways a habeas petitioner may exhaust his claims in state court. Typically, “a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). A criminal defendant may also exhaust his claims through New York’s other procedures allowing the collateral attack of a conviction. See Klein, 667 F.2d at 282–83; accord Valenzuela, 2020 WL 3839697, at *3. When a defendant challenges his conviction by raising claims not based on the record, that person can seek collateral review in a New York state trial court pursuant to New York Criminal Procedure Law § 440. See Elleby, 2020 WL 2611921, at *3. Lastly, as is relevant here, a petitioner may file a petition for a writ of habeas corpus pursuant to CPLR § 7002. If the trial court or Appellate Division were to deny the petition, the petitioner would have to seek review of the denial in order to establish exhaustion. See Tripathy, 473 F.Supp. 3d at 228–29.
1. New York Article 70
CPLR Article 70 is New York’s habeas corpus statute. Under CLPR § 7002(a), “[a] person illegally imprisoned . . . within the state . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance.” The petition may be made to the relevant supreme court, appellate division, a supreme court justice, or a county judge. CPLR § 7002(b). Typically, the petition is filed as an application for an order to show cause. See CPLR § 7003; People ex rel Tse v. Barometre, 131 N.Y.S.3d 896, 896 (2d Dep’t 2020). The reviewing court may issue the writ, deny the petition, or “order the respondent to show cause why the person detained should not be released.” CPLR § 7003.
CPLR § 7011 provides that “an appeal may be taken from a judgment refusing to grant a writ of habeas corpus or refusing an order to show cause issued under subdivision (a) of section 7003.” See Tripathy, 473 F.Supp. 3d at 229. In the event of an unfavorable decision from the Appellate Division, the petitioner may then seek leave to appeal from the New York Court of Appeals. CPLR § 5602; see Tripathy, 473 F.Supp. 3d at 229. At this point, a petitioner would have exhausted all available state remedies. See, e.g., Slater, 2020 WL 4016759, at *4; Garcia v. LaClair, No. 06-cv-10196 (SHS) (DF), 2011 WL 1097414, at *14 (S.D.N.Y. Jan. 3, 2011) (finding that the petitioner had not exhausted the claims raised in his state habeas proceeding because he “failed to appeal the pertinent adverse ruling to the highest court”), report and recommendation adopted, 2011 WL 1046058 (S.D.N.Y. Mar. 22, 2011).
Thus, a state prisoner may file an Article 70 habeas petition and follow that Article’s requirements to exhaust any claims. See Olsen v. Doldo, No. 16-cv-05366 (RA) (DF), 2020 WL 685707, at *49–51 (S.D.N.Y. Jan. 2, 2020) (“A petitioner may also exhaust a claim by raising it to the state trial court or the appropriate Appellate Division on a state petition for a writ of habeas corpus . . . and by then appealing from the denial of that petition . . . .” (citing CPLR §§ 7002, 7011)). In this vein, a perfected appeal pursuant to CPLR § 7011 (and then, if denied, seeking leave to appeal to the New York Court of Appeals) “is part of the ordinary appellate review procedure in the state.” O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999).
2. New York Article 57
CPLR Article 57 governs appeals to the Appellate Division. Generally, outside the habeas context, parties can seek appeal of the grant or denial of an ex parte order through CPLR § 5704. Pursuant to CPLR § 5704(a), the “appellate division or a justice thereof may vacate or modify” an ex parte order issued by a trial court. The appellate division-not just a single justice-may also “grant any order or provisional remedy without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division.” Id.
Similarly, CPLR § 5704(b) provides that the “appellate term in the first or second judicial department or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate term; and such appellate term may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate term.”
CPLR § 5704 is specific to ex parte orders and is a remedy available to litigants only when a judge refuses to sign an order to show cause. Greenhaus v. Milano, 661 N.Y.S.2d 664, 665 (2nd Dep’t 1997). When there is an order on an ex parte application, the order itself cannot be appealed. CPLR § 5701(a)(2); see Siegel, N.Y. Prac. § 244 (6th ed. 2020); see also CPLR § 5602 (governing appeals to the Court of Appeals by permission).
C. Analysis
Petitioners commenced an Article 70 habeas petition by order to show cause. They appealed the order refusing to sign that order to show cause, however, under Article 57.The question before the Court, then, is whether Petitioners’ appeal under CPLR § 5704 constitutes exhaustion. I find that it does not, based on the language of the CPLR and the policy reasons behind the exhaustion requirement.
Petitioners filed a CPLR § 7011 appeal of the May 11, 2020 email notifying Petitioners’ counsel of the court’s refusal to sign the order to show cause. A29; ECF No. 12, Ex. 6. The June 17, 2020 appeal was improper, however, because it was an appeal of the email, and not a court order. See CPLR § 5512(a) (“An initial appeal shall be taken from the judgment or order of the court of original instance and an appeal seeking review of an appellate determination shall be taken from the order entered in the office of the clerk of the court whose order is sought to be reviewed.”). See ECF No. 13 at 25 n.19. In any event, that appeal was never perfected.
Petitioners assert that the procedural steps they took before the Appellate Division under CPLR § 5704 constitute exhaustion, arguing that proceeding under CPLR § 5704, rather than § 7011, after the Westchester Supreme Court refused to sign the order to show cause, was “required by Second Department law, which bars the appeal of a court’s refusal to sign an ex parte order.” ECF No. 15 at 7. Petitioners cite to In re Nonhuman Rights Project, Inc. v. Stanley, 2014 N.Y. Slip Op. 68434(U), 2014 WL 1318081 (2d Dep’t Apr. 3, 2014), as the source of the Second Department rule. See ECF No. 15 at 8.
In Stanley, an unpublished, non-precedential case, a not-for-profit organization brought an Article 70 habeas corpus petition via an order to show cause for two chimpanzees held at the State University of New York at Stony Brook. See Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (1st Dep’t 2017) (describing Stanley). In a series of cases, the same organization sought the freedom of various animals held in captivity, but several courts determined that Article 70 was an improper vehicle, as it applied to “persons,” not animals. See, e.g., id. at 395–96; see also ECF No. 17, Ex. 2 (order of Asher, J., in Stanley declining to sign the order to show cause). It is in that context that the Appellate Division concluded that the petitioner’s appeal was dismissed “on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701),” and “decline[d] to grant leave to appeal.” Stanley, 2014 WL 1318081, at *1. Thus, the conclusion in Stanley that “no appeal lies as of right from an order” to show cause cannot be read as barring CPLR § 7011 appeals from orders to show cause that are refused by the trial court.
Rather, once a petitioner’s demand for an order to show cause why a detention is not illegal is refused, CPLR § 7011 plainly and specifically “governs the right of appeal in habeas corpus proceedings.” Wilkes v. Wilkes, 622 N.Y.S.2d 608 (2d Dep’t 1995). That section expressly authorizes an appeal as of right from “a judgment . . . refusing an order to show cause . . . .” CPLR § 7011; see also Vincent C. Alexander, Practice Commentaries, CPLR § 7011 (McKinney 2021) (“CPLR 7011 authorizes an appeal in two situations: (1) from a judgment refusing, at the outset, to grant a writ of habeas corpus or to issue an order to show cause (CPLR 7003(a)); or (2) from a judgment made upon the return of a writ or order to show cause (CPLR 7010).”). Petitioners’ argument that Stanley rendered CPLR § 7011 a nullity is without merit. See also Tse, 131 N.Y.S.3d 896 (reversing judgment refusing to issue an order to show cause brought under CPLR § 7003(a) and remanding to trial court for further proceedings on the habeas petition).
Petitioners argue that the exigent circumstances created by the pandemic required that they proceed pursuant CPLR § 5704. See ECF No. 15 at 7. Petitioners have not demonstrated the truth of that statement-that appeal pursuant to CPLR § 7011 would be any slower-nor have they established that the relief they sought (release) could be achieved any faster pursuant to CPLR § 5704. Any favorable ruling at the Appellate Division following their CPLR § 5704 appeal would merely commence the proceedings at the trial court to allow that court to rule on the merits of the petition. See, e.g., Rolle v. Henderson, 479 N.Y.S.2d 484, 484–85 (3d Dep’t 1984) (Mem.) (granting the petitioner’s CPLR § 5704 application seeking review of an ex parte application for a writ of habeas corpus and remitting the matter back to the trial court “for the issuance of an order to show cause authorizing commencement of this proceeding”); see also Pelicie v. Oswald, 332 N.Y.S.2d 973, 974 (4th Dep’t 1972) (Mem.) (explaining that the supreme court’s denial of an application for an order to show cause did not require a dismissal of the proceeding on the merits, and that the “dismissal of the application without a hearing should not prevent the petitioner from commencing a proper proceeding if he be so advised”); Harris v. N.Y. State Bd. of Parole, 179 N.Y.S.2d 378, 378–79 (3d Dep’t 1958) (Mem.) (upholding the trial court’s returning of an order to show cause unsigned, but noting that denial of the ex parte application should have been “without prejudice to petitioner’s right to commence the proceeding by service of notice”). In any event, Petitioners are not free to select the appellate road they wish to travel.
Additionally, the state exhaustion requirement’s purpose is to allow the presentment of “federal constitutional claims to the highest court of the state.” See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). The Appellate Division’s review of the denial of Petitioners’ request for an order to show cause is not a ruling on the merits of Petitioners’ constitutional claim.
Thus, exhaustion has not been established, despite Petitioners’ efforts, because they used “the wrong procedural vehicle.” Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985). Because of Petitioners’ use of CPLR § 5704 rather than CPLR § 7011, “the state courts never had a fair opportunity to pass on [Petitioners’] claim.” Id. The Appellate Division’s refusal to sign the order to show cause would not have precluded Petitioners from properly raising their claim through the procedures laid out in Article 70. Id.; see Tse, 131 N.Y.S.3d at 896–97.
Petitioners have also not demonstrated that they have established the requirements for an exception to the exhaustion requirement. There is no indication that “there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i); Tripathy, 473 F.Supp. 3d at 231–32 (collecting cases wherein New York state courts examined state prisoners’ applications for release due to the COVID-19 pandemic). Nor do “circumstances exist that render such process inefficient to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). It is not the case that “further pursuit would be futile”-rather, Petitioners still had (at the time of the filing of their petition) the opportunity to appeal the trial court’s refusal to sign the order to show cause to the Appellate Division. Lurie, 228 F.3d at 124; see Tse, 131 N.Y.S.3d at 896–97. The existence of this further remedy belies Petitioners’ assertion of exhaustion. See Gray v. Netherland, 518 U.S. 152, 161 (1996); see also Klein, 667 F.2d at 282 (“[P]etitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.”).
Reflecting on the exhaustion requirement’s purpose to preserve comity, the Court also considers the broader circumstances of this case. Were this Court to decide the petition before it, it would do so without the state courts first having the opportunity to decide whether duly convicted state prisoners, housed in state prisons, should be released because of COVID-19 practices managed by the Governor. The Westchester Supreme Court and a justice of the Appellate Division have, unquestionably, reviewed the procedural mechanism by which Petitioners brought their petition for a writ of habeas corpus. See A1–A2, A26–A27. But the claims have not been “made in such a way so as to give the state courts a ‘fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.’” Valenzuela, 2020 WL 3839697, at *3 (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)); see also Preiser, 411 U.S. at 492 (noting that because “internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems”).
Petitioners assert that requiring the exhaustion provided for in New York’s habeas statute would violate procedural due process. See ECF No. 15 at 12–14. This conclusory statement is insufficient, and the Court does not find a procedural due process violation in New York State’s habeas corpus appellate process. That the result of other habeas petitions in New York state courts did not yield favorable results for the petitioners in those cases is not indicative of a due process violation in the state judiciary’s system.
In sum, the Court returns to the exhaustion principle’s requirements: (1) giving the state the “necessary ‘opportunity to pass upon and correct’ alleged constitutional violations” by “fairly present[ing] 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,” Tripathy, 473 F.Supp. 3d at 228 (quoting Baldwin, 541 U.S. at 29); and (2) utilizing “all available mechanisms to secure appellate review of the denial of that claim,” Klein, 667 F.2d at 282. The Court concludes that Petitioners, despite what may have been their best efforts, have missed the mark on both counts, and have not exhausted their claims in state court.
III. Petitioners Kindell, Rodriguez, and B.B.
Respondents argue that Petitioners Kindell, Rodriguez, and B.B. should proceed, if at all, in separate actions. See ECF No. 13 at 34–35. Although the Court recommends dismissing the petition due to Petitioners’ failure to exhaust state remedies, the Court briefly addresses the arguments as to Petitioners Kindell, Rodriguez, and B.B.
A. Kindell and Rodriguez
Petitioners Kindell and Rodriguez currently have habeas corpus petitions pending in this district. See Kindell v. Capra, No. 20-cv-00304 (RA) (S.D.N.Y. filed Jan. 13, 2020); Rodriguez v. Capra, No. 19-cv-04171 (VSB) (SN) (S.D.N.Y. filed May 8, 2019). Respondent urges the Court to sever the claims brought by Petitioners Kindell and Rodriguez so that they may be evaluated with the rest of the claims raised in their pending habeas corpus petitions. ECF No. 13 at 34–35.
Because of the Anti-Terrorism and Effective Death Penalty Act of 1996’s limitations on “second or successive habeas corpus application[s],” courts in this Circuit have concluded that a second petition that is filed before there is a final determination on the first habeas petition “should be treated as a motion to amend the initial petition.” Stewart v. N.Y. Dep’t of Corr., No. 20-cv-02136 (JMA), 2020 WL 3415768, at *2 (E.D.N.Y. June 22, 2020) (ultimately citing Ching v. United States, 298 F.3d 174, 175 (2d Cir. 2002)); see 28 U.S.C. § 2244.
Thus, if this Court’s recommendation to dismiss the Petition is not adopted, the Court recommends construing the Petition as supplemental amendments to Petitioners Kindell’s and Rodriguez’s pending petitions. See ECF No. 15 at 15. This approach has been followed by other courts in this Circuit and promotes judicial economy by channeling all of a petitioner’s claims in one matter. See, e.g., McPherson v. United States, No. 19-cv-08635, 19-cv-11036 (WHP), 2020 WL 2765914, at *1–2 (S.D.N.Y. May 28, 2020); Valenzuela, 2020 WL 3839697, at *2.
B. B.B.
As Respondent first noted in his motion to dismiss, Petitioner B.B., although incarcerated at Sing Sing Correctional Facility at the time the state habeas corpus petition was filed, was no longer incarcerated at that prison at the time the federal habeas corpus petition was filed. See ECF No. 13 at 35. At a December 18, 2020 conference before the Court, Petitioners’ counsel acknowledged that Petitioner B.B. had indeed been moved to Great Meadow Correctional Facility and had no objection to dismissing Petitioner B.B. from the Petition. December 18, 2020 Tr. at 4:18–5:2.
CONCLUSION
Thus, I recommend that Respondent’s motion to dismiss be granted, and the Petition denied without prejudice.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party’s objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Colleen McMahon at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge McMahon. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).