Opinion
02 Civ. 1817 (LAP) (AJP)
October 31, 2002
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District Judge:
Petitioner Baity's habeas petition asserts two claims: (a) ineffective assistance of trial counsel, and (b) denial of his right to appeal. (Petition ¶ 12.) By Order dated March 13, 2002, Chief Judge Mukasey directed Baity to file an amended petition demonstrating whether and how he had exhausted state remedies on these claims. (Dkt. No. 1: 3/13/02 Order.) In response, on May 6, 2002 (received by the Court on May 14, 2002), Baity filed an amended petition that merely attached his (counseled) brief to the First Department — which did not raise either of his present habeas claims. (Dkt. No. 2.) In short, it is apparent that Baity did not exhaust any of his current habeas claims.
It also is clear that under New York law Baity still could bring a C.P.L. § 440 petition in State court to raise his ineffective assistance claim. See, e.g., Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *8 n. 13 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) ( cases cited therein).
The Court has no idea what Baity's second claim means, and suspects he was confused by the examples given in the habeas form. In any event, this claim is unexhausted since it was never raised in State court.
ANALYSIS
A habeas corpus petition shall not be granted unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The Second Circuit in Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001), instructed the district courts on how to handle a "mixed" petition containing exhausted and unexhausted claims in light of the AEDPA's one year statute of limitations: the district court should "dismiss only the unexhausted claims. As to the unexhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety." Id. at 380. The Second Circuit further instructed that "a stay . . . will be the only appropriate course in cases . . . where an outright dismissal 'could jeopardize the timeliness of a collateral attack.'" Id. The Second Circuit also noted that "a stay of the exhausted claims will often be preferable to a dismissal of the entire petition because such a stay will reflect the continued viability of the initially filed exhausted claims." Id. at 381.This case involves a different situation than Zarvela. Baity's petition contains no exhausted claims, only two unexhausted claims. ReadingZarvela literally, there is no exhausted claim to stay while dismissing the unexhausted claim. One could argue, however, that because Baity may be time-barred from bringing a habeas petition after exhausting his claims in state court, the spirit of Zarvela would be to stay his petition to allow him to exhaust his claims, so that his federal habeas petition could be considered timely. That spirit ofZarvela, however, itself conflicts with the spirit of the Supreme Court's decision in Duncan v. Walker, to encourage petitioners to exhaust before coming to federal court:
The New York Court of Appeals denied leave to Appeal on December 5, 2000. People v. Baity, 95 N.Y.2d 960, 722 N.Y.S.2d 477 (2000), aff'g, 276 A.D.2d 282, 713 N.Y.S.2d 862 (1st Dep't 2000). Thus, the AEDPA time limit began to run ninety days later, on March 5, 2001. E.g., Pratt v. Greiner, No. 01-2460, 2002 WL 31285784 at *5 n. 1 (2d Cir. Oct. 4, 2002) ( cases cited therein). Baity's habeas petition is dated December 4, 2001, and hence clearly was timely. However, because no statutory toll is available for the time his federal habeas petition was pending, Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129 (2001), if it is dismissed, any subsequent federal habeas petition will be time-barred unless Baity is entitled to equitable tolling. See Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002) ("[T]he fact that § 2244(d)(2) does not cause exclusion of the federal petition's time of pendency does not necessarily exclude the possibility of discretionary tolling on equitable grounds. Even though a petition is not entitled to the automatic tolling mandated by § 2244(d)(2), under appropriate circumstances the petitioner may be entitled to equitable tolling."); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) ("Equitable tolling, however, is only appropriate in 'rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time.") (citations omitted), cert. denied, 122 S.Ct. 1606 (2002); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam) (adopting the rule that equitable tolling applies to the AEDPA one-year limitations period),cert. denied, 531 U.S. 840 (2000). Baity's petition was not filed until after the decisions in Duncan and Zarvela, likely removing the change in legal principles ground as a basis for equitable tolling, but on the present record, the Court cannot now decide — and need not decide — whether Baity would be entitled to equitable tolling.
By tolling the limitation period for the pursuit of state remedies and not during the pendency of applications for federal review, § 2244(d)(2) provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts. But if the statute were construed so as to give applications for federal review the same tolling effect as applications for state collateral review, then § 2244(d)(2) would furnish little incentive for individuals to seek relief from the state courts before filing federal habeas petitions. The tolling provision instead would be indifferent between state and federal filings. . . . At the same time, respondent's interpretation would further undermine the interest in finality by creating more potential for delay in the adjudication of federal-law claims.
A diminution of statutory incentives to proceed first in state court would also increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce.Duncan v. Walker, 533 U.S. at 180, 121 S.Ct. at 2128. If this Court were to stay Baity's petition, it would encourage defendants to file their habeas petition immediately after the conclusion of direct appeal, even when they know they have not exhausted all claims in state court, because there would be no down side to doing so, only the benefit of being sure that the AEDPA statute of limitations would not expire. The federal court would then have to hold the case in abeyance with no control of or even knowledge about the progress of collateral state court proceedings. Once prison grapevines got wind of this beneficial procedure, federal court would be turned into a "jurisdictional parking lot" for unexhausted claims. See Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 124994 at *1 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (pre-Zarvela case, quoting Walker v. Artuz, 97 Civ. 5196, 1999 U.S. Dist. LEXIS 18531 at *1 (S.D.N.Y. Sept. 21, 1999) ("The Court finds that holding the petition in abeyance would be inefficient, because it would have the effect of making the district court "a jurisdictional parking lot.")). While Zarvela requires the Court to do so for mixed petitions to protect the petitioner's rights as to exhausted claims in a complicated area of law, there is no logical reason or basis to retain jurisdiction over a habeas petition that is totally and facially defective as completely unexhausted.
Because Baityhas failed to exhaust any of his claims, this Court has no basis to retain jurisdiction over his unexhausted habeas petition, which should be dismissed. See, e.g., Diguglielmo v. Sankowski, No. 01-2026, 42 Fed. Appx. 492, 2002 WL 1162791 at *4 (2d Cir. June 3, 2002) (dismissing habeas petition without prejudice where petitioner failed to exhaust any of his federal claims in the state system "because the New York Court of Appeals has not yet had an opportunity to address [petitioner's] federal claims, comity requires that we allow that court an opportunity to do so. Accordingly, we dismiss [petitioner's] petition without prejudice. This will allow [petitioner] to pursue any procedural options available to him in New York state court, and then take whatever steps may be appropriate to return to federal court if necessary.") (fn. omitted);Carpenter v. Reynolds, 212 F. Supp.2d 94, 98 (E.D.N.Y. 2002) (Since "petition contains only unexhausted claims . . . . the Court has no basis to retain jurisdiction while [petitioner] pursues exhaustion."); Ramos v. Superintendent of Clinton Corr. Facility, 01 Civ. 8743, 2002 WL 1226860 at *3 (S.D.N.Y. Apr. 12, 2002) ("As the Second Circuit recently has indicated, if [petitioner's] petition contained any exhausted claims, the appropriate course of action would be to dismiss the unexhausted claims, stay the remainder of the petition, and direct [petitioner] to notify the Court within a short period after he has completed the exhaustion of his state court remedies. Here, however, [petitioner's] petition contains no exhausted claims. Accordingly, this Court has no basis to retain jurisdiction while [petitioner] pursues exhaustion.") (emphasis added); Channer v. Brooks, No. 399CV2564, 2001 WL 1094964 at *4 n. 3 (D. Conn. Sept. 10, 2001) (dismissing habeas petition for failure to exhaust any claim in the petition).
See also. e.g., Moore v. Schoeman, 288 F.3d 1231, 1235-36 (10th Cir. 2002) (A "district court faced with a habeas petition containing [only] unexhausted claims, may either (1) dismiss the entire petition without prejudice in order to permit exhaustion of state remedies, or (2) deny the entire petition on the merits."); Brewer v. Long, No. 01-16230, 32 Fed. Appx. 944, 945, 2002 WL 530547 at *1 (9th Cir. Apr. 5, 2002) ("Because the petition contained no exhausted claims, the district court lacked jurisdiction and was obliged to dismiss the federal petition immediately; neither amendment nor a stay was permissible.").
For pre-Zarvela decisions dismissing habeas petitions containing no exhausted claims, see e.g., Padilla v. Keane, 00 Civ. 1235, 2000 WL 1774717 at *3 (S.D.N.Y. Dec. 4, 2000) (Peck, M.J.) (dismissing totally unexhausted habeas petition without prejudice); Jenkins v. McGinnis, Nos. CV 96-45410, CV 97-1860, 1999 WL 389897 at *2 (E.D.N.Y. Apr. 21, 1999) (Raggi, D.J.) ("[W]here [petitioner] has no claims for relief that have been exhausted in the state courts, the court finds that the appropriate action is . . . to dismiss both petitions without prejudice for failure to exhaust his state court remedies."); Cowans v. Artuz, 14 F. Supp.2d 503, 508 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.) (dismissing petition without prejudice where petitioner had failed to exhaust any of his five habeas claims in state court; "[T]he Court will not allow the AEDPA's statute of limitations to be circumvented by permitting a petitioner to file a habeas petition containing only unexhausted claims, and then holding that petition in suspense until the petitioner exhausts state remedies.").
Accordingly, the Court recommends that Baity's habeas petition should be dismissed without prejudice for failure to exhaust state court remedies.
Although any subsequent petition may be time barred, absent a basis for equitably tolling, the Court does not recommend dismissing the petition with prejudice for two reasons: First, because Baity might be entitled to equitable tolling, and second, in any event, so as not to limit any state remedies Baity may still pursue. Cf. Jimenez v. Rice 276 F.3d 478, 481-83 (9th Cir. 2001) (affirming dismissal of habeas petition with prejudice where petition presented only unexhausted claims and any future petition would have been time-barred by the AEDPA); Montalvo v. Mantello, 00 Civ. 4786, 2002 WL 1821569 at *6 (S.D.N.Y. Aug. 6, 2002) ("Generally, a petition for writ of habeas corpus with unexhausted claims is dismissed without prejudice to allow the petitioner to return to the state courts to exhaust all available state judicial remedies. However, the limitations period has expired, and therefore, it would be futile to dismiss without prejudice because [petitioner] cannot return to federal court.").