Opinion
21 Civ. 4734 (PMH)(PED)
05-18-2023
Delano F., Petitioner, v. Thomas D. Sini, District Attorney of Suffolk County, and Kirstin Orlando, Executive Director of the Mid-Hudson Psychiatric Center Respondents.
TO THE HONORABLE PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
I. INTRODUCTION
Delano F. (“Petitioner”), through counsel, filed a Petition for a Writ of Habeas Corpus, purportedly pursuant to 28 U.S.C. § 2241, challenging his confinement that is the result of a plea taken in the Supreme Court of Suffolk County. [Dkt. 1.] On March 4,2016, Petitioner pled not responsible by reason of mental disease or defect to two counts of arson in the third degree. As a consequence of that plea, Petitioner is currently confined in the Mid-Hudson Psychiatric Center located in Orange County, New York. The Petition comes before me pursuant to an Order of Reference entered on May 28, 2021. [Dkt. 6.] For the reasons set forth below, I respectfully recommend to Your Honor that the Petition be DISMISSED WITHOUT PREJUDICE.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1], Respondent's Answer with attached exhibits [Dkts. 27, 31, 35], and Petitioner's traverse [Dkt. 47.].
1. The Crime
On July 8, 2014, the detached garage of a residence in Deer Park, NY caught fire. The fire eventually spread to the house and rendered the house unliveable. Later, on September 14, 2014, the residence again caught fire and investigators determined that the fire had been started on the second floor of the house. Petitioner confessed to starting both fires.
2. Petitioner's Plea and Sentencing
On March 14, 2016, Petitioner changed his plea from not guilty to not responsible by reason of mental disease or defect, pursuant to CPL § 220.15. [Dkt. 31 at 187.] Petitioner pled not responsible by reason of mental disease or defect to two counts of arson in the third degree. [Id. at 204.] The judge conducted a colloquy before accepting Petitioner's plea and concluding that the plea was knowing and voluntary. [Id. at 200-19.] On March 22, 2016, Petitioner was ordered to submit to a psychiatric examination to determine whether he had a dangerous mental disorder or was mentally ill pursuant to CPL § 330.20. [Id. at 225-27.] Thereafter, it was determined that Petitioner suffered from a dangerous mental condition and he was committed to the custody of the Commissioner of Mental Health for confinement. See People v. Delano F., 111 N.Y.S.3d 85, 86 (App. Div, 2dDep't2019).
B. Procedural History
1. Petitioner's Motion to Vacate
On May 5, 2017, Petitioner, through counsel, filed a notice of motion to withdraw or vacate his plea pursuant to CPL § 220.60 in the Supreme Court for the County of Suffolk. [Dkt. 31-1 at 98.] Petitioner argued that his plea was not knowing and voluntary because he was under duress due to the conditions at Suffolk County Correctional Facility at Riverhead (“Riverhead”). [Id. at 98-118.] The state submitted its opposition on June 20, 2017. [Id. at 180.] On August 30, 9 2017, the county court found Petitioner's arguments unpersuasive and denied his motion. [Id at 93-97.]
On April 17, 2018, Petitioner, through counsel, submitted a brief appealing the county court's denial of his motion to the Appellate Division, Second Department. [Dkt. 31 at 249.] Petitioner argued that his plea should have been vacated or that he should have been able to withdraw his plea, because it was not voluntarily made. [Dkt. 31-1 at 13-27.] He further argued that the waiver of his appeal that he had executed in connection with his plea did not preclude his challenge to the voluntariness of the plea. [Id. at 27-29.] The state submitted its opposition on July 30, 2018. [Id. at 67.] Petitioner submitted a reply on August 10, 2018. [Id. at 85.]
On October 2, 2019, the Appellate Division dismissed Petitioner's appeal. Delano F, HlN.Y.S.3dat86. The Appellate Division determined that Petitioner could not appeal the denial of his motion because there was no statutory provision that permitted him to appeal its denial. Id. at 87. The Appellate Division specifically observed that “although the Legislature amended CPL 220.60 to permit motions to withdraw a plea of not responsible by reason of mental disease or defect, no avenue for appeal of the denial of such motions existed, and none was created, at the time the statute was amended.” Id. Petitioner requested leave to appeal the Appellate Division's dismissal to the Court of Appeals. However, on February 26, 2020, his request was summarily denied. People v. Delano F, 142 N.E.3d 1141 (Table) (N.Y. 2020).
2. The Instant Petition
Petitioner filed the instant Petition on May 26, 2021. [Dkt. 1.] The Respondent filed a response in opposition to the Petition on June 15, 2022. [Diet. 27.] On September 16, 2022, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 47.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[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 appeal's that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 4 518-19(1982).
To exhaust a federal claim, the petitioner must 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,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F, Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Fordv. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.lO (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(l)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rale from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Ch. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
This is an unusual habeas corpus petition. On the one hand, Petitioner is not “in custody pursuant to the judgement of a State Court” as contemplated by 28 U.S.C. § 2254(a). On the other hand, Petitioner does not challenge the conditions of his confinement-the ordinary basis for a petition under 28 U.S.C. § 2241-but instead advances the claim that his “not responsible by reason of mental disease or defect” plea in the underlying criminal proceeding was involuntary. Thus, a threshold issue is whether this petition should be analyzed under § 2241 or § 2254. The distinction is consequential because § 2254 claims are subject to AEDPA's mandatory exhaustion requirement, 28 U.S.C. § 2254(b), whereas “the exhaustion requirement for § 2241 petitions is prudential, not statutory . .. [so] failure to exhaust may be excused at the court's discretion.” Zucker v. Menifee, 2004 WL 102779, at *4 (S.D.N.Y. Jan. 21, 2004).
A. Section 2254 Governs This Petition
Petitioner has styled his petition as arising under 28 U.S.C. § 2241, but Respondent asserts that the Petition should have been brought pursuant to 28 U.S.C. § 2254. As indicated above, this distinction matters because § 2254 actions are subject to the requirements of AEDPA. “[I]t is the substance of the petition, rather than its form, that determines the applicability of AEDPA[.]” James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002).
Where a petitioner seeks to challenge their commitment to a psychiatric institution under state law, “the question [of] whether his habeas petition should be analyzed under § 2241(c)(3) or § 2254 is not always straightforward.” Henry v. Murphy, 2018 WL 7291456, at *2 n.5 (S.D.N.Y. Oct. 31, 2018). “Challenges to the conditions of confinement in a mental institution are often brought pursuant to § 2241 (c).” Id. (collecting cases). “Challenges to the commitment itself, however are properly brought pursuant to § 2254.” Id. (collecting cases); see Cook v. N. K State Div. Parole, 321 F.3d 274, 278 (2d Cir. 2003). Because Petitioner here seeks to challenge the validity of his underlying plea in criminal court that resulted in his commitment to the psychiatric institution, as opposed to the conditions of that commitment, the appropriate statute to address Petitioner's habeas petition is § 2254. Petitioner relies on Soto v. Warden, New York City Department of Correction, 2021 WL 4192861, at *1-2 (E.D.N.Y. Aug. 10, 2021), to argue that because there is no state court judgment against Petitioner, § 2241 is the appropriate habeas statute. But Soto, which involved a pretrial detainee, is not controlling here. Although Petitioner has not been convicted or sentenced, Delano F, 111 N.Y.S.3d at 86, his posture is very different from the Soto petitioner because no further criminal proceedings are contemplated in Petitioner's case.
Instractive here is Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In Francis S, the Second Circuit addressed whether the recommitment of a petitioner who, like Petitioner here, has pleaded not responsible by reason of mental disease or defect would be analyzed under § 2254. Francis S, 221 F.3d at 108 n.lO. The Second Circuit acknowledged that Congress restricted the “scope of federal habeas petitions to state court judgments convicting criminal defendants, rather than adjudicating the commitment, or in this case the recommitment, of those alleged to be mentally ill and likely to engage in dangerous conduct.” Id. Nonetheless, the Second Circuit determined that § 2254 still applied because it applies to “any claim that was adjudicated on the merits in State court proceedings[.]” 28 U.S.C. § 2254(d). Petitioner argues that the Second Circuit's holding in Francis S. is inapposite because it concerned the recommitment of the petitioner, and a recommitment order is final. But the Second Circuit's observation regarding the applicability of § 2254 referenced commitment proceedings as well as recommitment proceedings, 211 F.3d at 108 n.10, so Petitioner's effort to distinguish Francis S. is unpersuasive.
Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that Petitioner's case is properly analyzed under § 2254.
B. Petitioner's Claim Is Unexhausted
Petitioner maintains that he has exhausted his claims via his motion to vacate the judgment and his subsequent effort to appeal the denial of that motion to the Appellate Division and the New York Court of Appeals. Because the appellate court dismissed Petitioner's appeal on jurisdictional grounds, without reaching the merits, and because Petitioner appears to have more appropriate alternative remedies available to him in state court, I recommend that Your Honor conclude that his claims are unexhausted.
The AEDPA exhaustion requirement, applicable to habeas proceedings under § 2254, mandates that a petitioner “fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review)[.]” Baldwin, 541 U.S. at 29. It is not enough that a petitioner merely present his claim to the appropriate state court, but he must also “have utilized all available mechanisms to secure appellate review of the denial of that claim.” Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). Nonetheless, a petitioner “need not have invoked every possible avenue of state court review” to qualify for habeas relief. Galdamez, 394 F.3d at 73. A petitioner must have given the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845. “A complete round requires that the petitioner must present his or her claim to the highest court of the state.” Galdamez, 394 F.3d at 73 (internal citations, quotation marks, and alterations omitted). “If a petitioner fails to present his or her federal constitutional claim to the highest state court able to review it, the claim is unexhausted.” Sanabria v. Martuscello, 2019 WL 4942118, at *7 (S.D.N.Y. Oct. 8, 2019) (citing Galdamez, 394 F.3d at 73); see Chebere v. Phillips, 2013 WL 5273796, at *19 (S.D.N.Y. Sept. 18, 2013) (“Once the state courts are appraised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to ‘the highest court of the pertinent state.'” (quoting Bossett v. Waltker, 41 F.3d 825, 828 (2d Cir. 1994))); Washington v. Superintendent, Ottisville Corr. Facility, 1997 WL 176616, at *8-9 (S.D.N.Y. Apr. 11, 1997) (“State court remedies will not be deemed exhausted until a habeas petitioner has given the highest state court of competent jurisdiction a fair opportunity to consider his federal claim by informing it of the both factual and legal premises of the claim.”). The underlying principle is comity, such that “when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” O'Sullivan, 526 U.S. at 844-45.
Here, Petitioner attempted to follow the familiar appellate path applicable to criminal convictions and sentences; first by seeking review of the denial of his motion to withdraw his plea by the Appellate Division, and then by requesting leave to appeal to the New York Court of Appeals. See Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005). Under state law, however, Petitioner's plea of not responsible by reason of mental disease or defect did not result in a judgment, so there was no statutory authority for a direct appeal. See People v. Herndon, 595 N.Y.S.2d 8, 8 (App. Div., 1st Dep't 1993) (no right to appeal from not responsible by reason of mental disease or defect plea). Accordingly, the Appellate Division dismissed Petitioner's appeal on jurisdictional grounds, without reviewing his claims. Delano F, 111 N.Y.S.3d at 8687.
Petitioner maintains that his motion to withdraw or vacate his plea pursuant to CPL § 220.60, coupled with his jurisdictionally-doomed appeal from the denial thereof, was sufficient to exhaust his Petition and trigger federal habeas review. However, “[t]he purpose of the exhaustion requirement would be ‘utterly defeated' by ‘allowing] federal review to a [petitioner] who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it.'” Smith v. Annucci, 2022 WL 10510247, at *7 (W.D.N.Y. Oct. 17, 2022) (quoting Edwards, 529 U.S. at 453). In my view Petitioner's pursuit of an unauthorized appellate remedy following denial of his motion by a trial court cannot be viewed as full exhaustion, at least not where Petitioner had recourse to an additional state remedy that would enable appellate review. Here, Petitioner failed to challenge his confinement by petitioning for a state writ of habeas corpus pursuant to CPLR § 7002, a procedural vehicle for which appellate review is specifically authorized. See CPLR §7011. In Herndon, which was cited with approval by the state appellate court in Petitioner's case, see Delano F., Ill. N.Y.S.3d at 87, the Appellate Division clearly signaled that a civil committee who wishes to challenge the validity on his underlying not responsible by reason of mental disease or defect plea may “petition[] for a [state] writ of habeas corpus to challenge the legality of his committment[.]” 595 N.Y.S.2d at 8; see People ex rel. DeLia v. Munsey, 41 N.E. 3d 1119 (N.Y. 2015) (common law habeas writ broadly available to patients in psychiatric facilities).Accordingly, I recommend that Your Honor conclude that Petitioner has failed to exhaust his claims. See Martella v. Capinello, 2007 WL 2219479, at *6 (E.D.N.Y. July 24, 2007) (petitioner who alleged violation of terms of his “not responsible” plea “failed to exhaust his state court remedies, including state habeas corpus relief”)
Respondent also argues that Petitioner could submit a writ of error coram nobis. [Dkt. 27 at 23.] The availability of that remedy is unclear because recent interpretations view the writ as having been largely abrogated by the Criminal Procedure Law and consequently confined to a narrow subset of situations not applicable here. See People v. Tiger, 110 N.E.3d 509, 521-22 (N.Y. 2018) (Garcia, J., concurring); People v. Andrews, 17 N.E.3d 491, 494-95 (N.Y. 2014).
Requiring Petitioner to pursue state habeas remedies despite having sought relief via CPL § 220,60 is akin to requiring a petitioner to file and exhaust a CPL § 440.10 motion, even after attempting to present ineffective assistance of counsel claims on direct appeal. Although a petitioner may raise “his claim of ineffective assistance of counsel on direct appeal to the Appellate Division and in his application for leave to appeal to the New York Court of Appeals, the state statutory scheme and the Court's own policies militate[] against reviewing the issue at this procedural state, i.e., on the direct appeal.” U.S. ex ret. LaSalle v. Smith, 632 F.Supp. 602, 606 (E.D.N.Y. Apr. 11, 1986) (internal quotation marks omitted). “This being the case, the mere presentation of the ineffective assistance of counsel issue on direct appeal did not create a fair opportunity for decision, and consequently did not authorize petitioner to proceed to federal court without seeking a state post-conviction remedy.” Id. (internal quotation marks and alteration omitted). Similarly here, the statutory scheme prevented the Appellate Division from reviewing Petitioner's arguments. Delano F, Ill. N.Y.S.3d at 86-87. Accordingly, Petitioner's misdirected appeal did not give the appellate court a “fair opportunity for decision.” LaSalle, 632 F.Supp. at 606.
Accordingly, I conclude, and respectfully recommend Your Honor conclude, that Petitioner's claims are unexhausted, and that he must to return to state court to fully exhaust his claims before obtaining federal habeas review.
Although I have recommended that your Honor analyze this petition under 28 U.S.C. § 2254,1 note that the outcome would not necessarily differ under a 28 U.S.C. § 2241 analysis. Although § 2241 does not have a statutory exhaustion requirement, “decisional law has superimposed such a requirement in order to accommodate principles of federalism.” United States ex rel. Scranton v. New York, 532 F.3d 292, 294 (2d Cir. 1976).
In concluding that Petitioner has not exhausted any of his arguments, I recognize that “this Court has no basis to retain jurisdiction over his unexhausted habeas petition, which should be dismissed.” Baity v. McCary, 2002 WL 31433293, at *2 (S.D.N.Y. Oct. 31, 2002) (collecting cases). Accordingly, I recommend that Your Honor dismiss the Petition without prejudice so that Petitioner may return to state court and exhaust his unexhausted Petition. See id. at *3 & n.4.
Dismissing without prejudice “is only appropriate when doing so would not impair the petitioner's ability to return to federal court.” Bethany v. Noeth, 2022 WL 178182574 at *5 (W.D.N.Y. Dec. 19, 2022). Here, because Petitioner is not “in custody pursuant to the judgement of a State court[,]” the one-year AEDPA limitations period is not triggered. 28 U.S.C. § 2244(d)(1). Also, “a petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies is not a ‘second or successive' petition within the meaning of § 2244.” Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996). Accordingly, there should be no obstacle to a renewed federal habeas application in the event that Petitioner exhausts state remedies but fails to obtain the relief he seeks.
V. CONCLUSION
For the reasons set forth above, I conclude, and I respectfully recommend that Your Honor, that the Petition be DISMISS WITHOUT PREJUDICE. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Respectfully Submitted,
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Philip M. Halpern, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).