Opinion
05-CV-2941 (CBA).
September 30, 2008
MEMORANDUM AND ORDER
On April 25, 2005, petitioner Petrix Desrosiers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a Memorandum and Order dated September 26, 2006 (the "9/26/06 Order"), this Court denied the claims in his original petition, granted leave to file an amended petition, and appointed him counsel. In the amended petition, Desrosiers pursues two claims. First, he claims that he did not plead guilty knowingly, voluntarily, and intelligently, because he was not informed of the length of his post-release supervision ("PRS"). Second, he claims that the imposition of his period of PRS by the Department of Correctional Services ("DOCS") after sentencing, rather than by the judge at sentencing, violated Due Process. The parties briefed these issues and, on September 13, 2007, the Court issued an order (the "9/13/07 Order") dismissing the first claim on the ground that petitioner failed to exhaust it before filing his petition, and held that because he could not return to state court to do so, the claim had been procedurally defaulted. With respect to the second claim, the Court ordered further briefing on the issues of timeliness and exhaustion. The parties have briefed those issues, and, in addition, petitioner has moved for reconsideration of the portion of the Court's 9/13/07 Order that dismissed his first claim as procedurally defaulted. For the reasons stated below, petitioner's motion for reconsideration is denied. The Court will defer entry of Judgment and stay this proceeding to permit petitioner to exhaust his Due Process claim.
I. Background
On February 13, 2003, petitioner pled guilty to one count of robbery in the Second Degree, in satisfaction of an indictment for three counts of Second Degree Murder, two counts of Second Degree Burglary, one count of Second Degree Criminal Possession of a Weapon, and one count of Fourth Degree Conspiracy. At his plea allocution, the court advised the petitioner that he would be subject to a period of post-release supervision, but did not specify its length. Petitioner indicated that he understood that he would be subjected to PRS. Petitioner was subsequently sentenced to a determinate term of twelve years imprisonment. However, PRS was not mentioned by the judge at sentencing. Sometime thereafter, DOCS may have administratively added a five-year period of PRS to petitioner's sentence. Neither this Court nor the petitioner have been provided with a definite confirmation that this has occurred nor any details regarding how and when this was effectuated.
After his sentencing, instead of filing a direct appeal, petitioner filed a pro se motion to vacate judgment pursuant to N.Y.C.P.L. § 440.10 in State Supreme Court. Therein, he claimed that his guilty plea was not entered knowingly and voluntarily because he was coerced into pleading guilty. In support of his claim, petitioner contended that he was advised that if he did not plead guilty — and subsequently lost at trial — he would be sentenced to 25 years imprisonment. He also claimed that he was not guilty, only confessed because he was beaten, and that one of the crime victims had informed the prosecutor of his innocence. His motion was denied, and leave to appeal this ruling to the Appellate Division was also denied.
Thereafter, petitioner, with the assistance of counsel, filed a direct appeal in the form of a motion to reduce his sentence. He did so pursuant to Rule 670.12(c) of the Appellate Division, Second Department, which permits a criminal defendant's direct appeal to take the form of a motion where the only claim raised challenges the propriety or excessiveness of a sentence. In his appeal, petitioner claimed that his waiver of his right to file that appeal was not knowing, voluntary, or intelligent, and, as a result, the Appellate Division could consider whether or not his sentence was excessive. The state replied, arguing that petitioner's waiver of his right to file an appeal was valid. In a decision dated October 25, 2004, the Appellate Division affirmed petitioner's sentence without opinion, and petitioner's subsequent motion for leave to appeal to the Court of Appeals was denied.
After losing on direct appeal, petitioner, proceeding pro se, filed another motion pursuant to section 440 in State Supreme Court, this time a motion to set aside his sentence pursuant to N.Y.C.P.L. § 440.20. Therein, petitioner raised arguments similar to those raised by counsel in his direct appeal. In a decision dated January 25, 2005, the court denied petitioner's 440.20 motion, and his application for leave to appeal was denied by the Appellate Division on April 15, 2005. Thereafter, petitioner moved, again pro se, for reargument of his 440.20 motion, and this motion was denied on November 3, 2005.
In his original pro se habeas petition, filed April 4, 2005 (before his motion for reargument regarding his 440.20 motion was filed), petitioner raised a single argument: that he plead guilty under duress imposed by the prosecutor and judge. On September 26, 2006, the Court dismissed the claim in the original petition, but granted leave to amend and assigned counsel to represent the petitioner. After the parties briefed the issues raised in the amended petition, the Court issued its September 13, 2007 order dismissing the involuntary plea claim but ordering further briefing on the Due Process claim regarding the administratively-imposed PRS. Those issues are now fully briefed.
II. Discussion
A. Motion for Reconsideration
Petitioner moves for reconsideration of the portion of the Court's 9/13/07 Order which dismisses the claim that his guilty plea was involuntary as procedurally barred. He primarily argues that the Court improperly applied the procedural default rule articulated in Wainwright v. Sykes, 433 U.S. 72 (1977), because the state courts never explicitly relied on CPL § 440.10(2)(c) — which the Court cited in its order — in rejecting petitioner's claims. Without such an explicit reliance, he argues that the state courts did not rely on an independent and adequate procedural basis to reject this claim, and that this Court therefore erred. Petitioner's argument misconstrues the purpose of the Court's citation to section 440.10(2)(c) and the underlying basis for its decision.
The Court has the inherent power to reconsider and modify its interlocutory orders. See United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982); see also Fed.R. Ci.v P. 54(b); E.D.N.Y. Local Rule 6.3.
Petitioner cites Klein v. Harris, 667 F.2d 274 (2d Cir. 1981) in support of his argument. In Klein, the petitioner failed to file a direct appeal of his conviction. Rather, he filed a motion pursuant to NY CPLR § 440.10, which the court denied on the merits. Id. at 281. He then filed a habeas petition in federal court, which the district court granted. On appeal, the Second Circuit first held that petitioner had exhausted his available state remedies, because although he did not directly appeal his conviction, he did present his claim, through his 440.10 motion and its appeal, to the highest state court available to review it. Id. at 282-84. Having determined that the petitioner's claim was exhausted, the court then moved on to the State's argument that the claims were barred for petitioner's failure to contemporaneously object and for his failure to raise them on direct appeal. Id. at 284. The court rejected this argument under Wainwright and the independent and adequate state law doctrine discussed therein. The court's decision rested on the fact that the underlying 440.10 court did not explicitly reject the petitioner's claim on procedural grounds — though it probably could have. The court concluded that under these circumstances the federal habeas court could not assume that the state court relied on an independent and adequate state law grounds for decision. Id. at 284-87. Accordingly, Klein stands for the proposition that a federal habeas court cannot rely on a state procedural default that was not explicitly relied on by the underlying state court to be an independent and adequate state law ground for decision under Wainwright.
Petitioner's argument and citation to Klein miss the mark. Nowhere in its 9/13/07 Order did the Court rely on the independent and adequate state law doctrine, and the Court is aware that it is inapplicable in this case. Rather, the Court relied on the equally well-settled but entirely distinct principle that "[i]f a claim has not been exhausted and the petitioner no longer has a state forum in which to raise the claim, the claim should be deemed exhausted but procedurally barred from habeas review." (9/13/07 Op. at 6.) Although sometimes couched in language similar to that employed in the independent and adequate state law context — specifically because both are often referred to as "procedural defaults" — this principle is simply a logical outgrowth of the exhaustion doctrine. It essentially provides that where the failure to exhaust becomes irreparable because the petitioner has lost his chance to avail himself of the proper state law forum, his claim for federal habeas relief is procedurally barred. See St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004) (federal claim was not presented to state courts and could no longer be raised on direct appeal or by collateral review such that it was deemed exhausted but procedurally barred from habeas review); Ramirez v. Att'y Gen. of N.Y., 280 F.3d 87, 94 (2d Cir. 2001) ("Even if a federal claim has not been preserved to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law. Review of a procedurally barred claim in a federal court will, however, be subject to the cause and prejudice standard before reaching the merits." (internal citation omitted)); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) ("For 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." (internal quotations omitted) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), which in turn quoted Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)));Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); McCormick v. Hunt, 461 F. Supp. 2d 104, 109-10 (W.D.N.Y. 2006).
The Supreme Court acknowledged the distinction between the two types of procedural defaults in Harris. The Court first added to the Wainwright jurisprudence, holding, in the context of the independent and adequate state law doctrine, that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." 489 U.S. at 263. However, the Court appended a footnote to that very sentence which illustrates the distinction at issue here:
[The independent and adequate state law ground] rule necessarily applies only when a state court has been presented with the federal claim, as will usually be true given the requirement that a federal claimant exhaust state-court remedies before raising the claim in a federal habeas petition. Of course, 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. This case, however, does not involve an application of this exhaustion principle because petitioner did raise his ineffective-assistance claim in state court.489 U.S. 263 n. 9.
In further support of his argument, petitioner cites Pratt v. Greiner, 306 F.3d 1190 (2d Cir. 2002) and Bennett v. Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999). These cases did not deal with the issue before this Court. Rather, these cases dealt with a different issue: namely, determination as to when a state collateral challenge is "properly filed" with respect to AEDPA's tolling provision. These cases do not undermine the applicable precedent that explicitly requires that a federal court determine whether or not the failure to exhaust can be cured.
The Court did not, as petitioner argues, rely on section 440.10(2)(c) to conclude that there was an independent and adequate state law basis on which to deny his claim. Rather, the Court cited section 440.10(2)(c) to demonstrate that petitioner's claim could no longer be heard in state court and thus was deemed exhausted but procedurally barred. This is routinely done by federal courts in this context. See, e.g., St. Helen, 374 F.3d at 183-84; Reyes, 118 F.3d at 139; Bossett, 41 F.3d at 828-29;McCormick, 461 F. Supp. 2d at 110.
Accordingly, the Court's 9/13/07 Order rests on the initial conclusion that petitioner did not exhaust the claim that his plea was involuntary on the grounds that the judge did not inform him of the duration of his period of PRS at his plea allocution. In his motion for reconsideration, petitioner once again contests this conclusion. By statute, a federal district court cannot grant a habeas petition brought by a state prisoner unless he first exhausts all available state remedies. See 28 U.S.C. § 2254(b); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Ramirez, 280 F.3d 94 ("Under 28 U.S.C. § 2254(b), applicants for habeas relief serving state sentences must first exhaust all state remedies." (citing Grey, 933 F.2d at 199)). "State remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the petition to the highest state court . . . and (ii) informed that court (and lower courts) about the factual and legal basis for the federal claim." Ramirez, 280 F.3d at 94 (citing, among other cases, Picard v. Connor, 404 U.S. 270, 276-77 (1971)); see also Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 190 n. 3 (2d Cir. 1982). This requires that a petitioner "alert the state court to the constitutional nature of a claim," but he need not "refer to chapter and verse of the U.S. Constitution." St. Helen, 374 F.3d at 182 (internal quotations and alterations omitted). Thus, in order to have exhausted his federal claims, a petitioner must have "presented the substance" of his federal constitutional claim to the state courts. Bossett, 41 F.3d at 828. This serves to provide the state courts with a fair opportunity to resolve the federal constitutional issues before a state prisoner can proceed to federal court. McCormick, 461 F. Supp. 2d at 108 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)).
The Court need not reconsider this conclusion, which has already been litigated and decided. See Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001). However, it will address petitioner's renewed argument here to clarify and amplify its prior decision.
Petitioner concedes that he did not present this claim to the state courts on direct appeal but argues that he did so in his subsequent 440.20 motion, citing the general duty to read a pro se litigant's papers liberally. He bases this argument on a few key additions to the brief submitted in support of the 440.20 motion that were not included in his brief on direct appeal. First, in the 440.20 motion, petitioner cited People v. Goss, 733 N.Y.S.2d 310 (App.Div. 2001), a case in which the defendant successfully challenged his guilty plea on the basis that he had not been advised that he would be subject to PRS. Second, he cited two other cases which stand for the more general proposition that a trial court has a duty to ensure that a defendant's guilty plea was entered knowingly and voluntarily, one federal and one state. Because these citations were added to the 440.20 motion, petitioner argues that his claim was presented to the state courts and is therefore exhausted.
It is unclear whether Goss was decided on federal or state constitutional grounds, though it is worth noting that it cites mostly New York state cases.
The federal case cited is Boykin v. Alabama, 395 U.S. 238 (1969) and the state case is cited as People v. Ford, 86 N.Y.S.2d 394, 402-03. However, the citation to the latter is clearly incorrect, as a case entitled In re Graves' Will appears at that citation (as 86 N.Y.S.2d 382).
As the Court concluded in the 9/13/07 Order, petitioner did not exhaust his claim in state court. The Court concluded that the 440.20 motion was properly read by the state court as challenging only the legality of his sentence, and not the validity of his guilty plea. The Court reaffirms its holding in the 9/13/07 Order that these few citations in the context of petitioner's overall 440.20 motion — which made no explicit argument that his guilty plea was illegal and should be vacated by virtue of the failure of the judge to inform him of the length of the PRS — are insufficient to meet the standard for exhaustion set out above. This conclusion is reinforced by the fact that the motion itself was a motion pursuant to section 440.20, which can only challenge the legality of a sentence, and not section 440.10, which can be used to attack a judgment of conviction. Accordingly, the 440.20 court, in deciding the motion, construed petitioner's arguments as pertaining to his sentence. It asserted that the claims raised regarding the invalidity of petitioner's waiver were the same as those raised on the direct appeal. It is uncontested that on appeal the issue was the legality of the sentence. The 440.20 court wrote: "To the extent that the defendant is alleging that the sentence is somehow illegal because the Court did not specifically mention the length of the term of post-release supervision, that claim is barred pursuant to C.P.L. § 440.20(2) since the merits of that application have been previously rejected by an appellate court." People v. Desrosiers, Ind. No. 3520/2000 (N.Y. Crim. Ct. Jan. 25, 2005) (emphasis added). Petitioner has made no showing that the 440.20 court — the only court that petitioner contends he presented this claim to — was given a fair opportunity to assess a claim regarding the constitutionality of his guilty plea.
Throughout his papers, petitioner refers to the 440.20 motion as the "440 motion." His decision to do so is suspicious in light of the significance of the omitted digits appearing after the decimal point.
Finally, as is explained above, the Court must consider whether or not it would be futile for petitioner to return to state court to cure this defect. The Court did so in the 9/13/07 Order, but will briefly review that conclusion here. While New York provides a mechanism for collateral review of a judgment of conviction — section 440.10 — review is precluded in the event that "sufficient facts appear on the record with respect to the ground raised" such that it could have been raised on direct appeal. N.Y.C.P.L. § 440.10. Here, as is noted in the 9/13/07 Order, the record of his plea allocution plainly shows petitioner was told only that there would be a PRS period, not the length of such term. Accordingly, he knew all he needed to know in order to raise this issue on direct appeal. Further review pursuant to a 440.10 motion is precluded because this on the record claim could have been raised on appeal and was not.
For the foregoing reasons, petitioner's claim that his plea was involuntary is "deemed exhausted" but is procedurally defaulted. As the Court explained in the 9/13/07 order, this default can be excused on a showing of cause and prejudice or a potential fundamental miscarriage of justice — neither of which are present here. Petitioner's motion for reconsideration did not challenge these conclusions. Accordingly, the motion for reconsideration is denied, and petitioner's claim that his guilty plea was involuntary is dismissed.
B. Due Process Claim
The Court now turns to petitioner's claim that the administrative imposition of his period of PRS violated Due Process. In accord with the Court's 9/13/07 Order, the parties have briefed the issues of timeliness and exhaustion with respect to this claim, and those issue are now ripe for decision.
1. Timeliness
In the 9/13/07 Order, the Court observed that petitioner's Due Process claim appeared to be untimely, but noted that it would survive if it relates back to a timely filed claim (the validity of the plea claim), or if the predicate facts giving rise to the claim were undiscoverable to the petitioner until a time within one year of when the claim was brought. The Court addresses each issue in turn.
a. Relation Back
The Federal Rules of Civil Procedure provide that a claim brought for the first time in an amended pleading "relates back" to the date of the original filing for statute of limitations purposes if "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2); see also Hiraldo v. United States, No. 05 CV 0760, 2006 WL 1794775, at *3 (E.D.N.Y. June 7, 2006). This serves to ensure that "the original complaint gave the defendant fair notice of the newly alleged claims." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000). Rule 15(c) applies in the habeas context despite the fact that a habeas petition is not an ordinary civil action. See Fama, 235 F.3d at 814-16. Thus, the Due Process claim will be deemed timely if it relates back to the claim regarding the validity of the guilty plea.
The Supreme Court concluded it is not appropriate to define "conduct, transaction, or occurrence" more broadly in the habeas context than in the ordinary civil context. See Mayle v. Felix, 545 U.S. 644, 657 (2005); Veal v. United States, Nos. 01 Civ. 8033, 97 Cr. 544, 04 Civ. 5122, 2007 WL 3146925, at *4 (S.D.N.Y. Oct. 9, 2007). In Mayle, the Court rejected the approach of both the Seventh and Ninth Circuits, which "define[d] those words to allow relation back of a claim first asserted in an amended petition, so long as the new claim stem[med] from the habeas petitioner's trial, conviction, or sentence." Mayle, 545 U.S. at 656. The Court criticized this approach, noting that "[u]nder that comprehensive definition, virtually any new claim introduced in an amended petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto." Id. at 656-57. The Court then adopted the more restrictive approach employed by several other circuits, which "allow[s] relation back [in the habeas context] only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in 'both time and type' from the originally raised episodes." Id. at 657 (quoting United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)); see also Veal, 2007 WL 3146925 at *4; Hiraldo, 2006 WL 1794775 at *4.
Where the underlying facts of the two claims occur at different times, relation back is generally inappropriate — even if the two claims involve some common factual nexus. For instance, in one of the examples given by the Supreme Court in Mayle, In re Coastal Plains, Inc., 179 F.3d 197, 216 (5th Cir. 1999), both the original complaint and the subsequent claim were linked to a creditor's alleged plan to destroy Coastal Plains. Nevertheless, the claims did not relate back, as one involved the creditor's attempt to interfere with business relations by attempting to sell Coastal to a third party and the other was a claim for failure of that creditor to return inventory to Coastal. Even more instructive is another example cited by the Mayle Court, Sierra Club v. Penfold, 857 F.2d 1307, 1315-16 (9th Cir. 1988). In Penfold, both claims challenged an agency regulation. However, there was no relation back because one claim challenged the manner in which the agency applied the regulation, and the other attacked the agency's conduct in adopting it. The court explained:
Similarly, it is now fairly well-established that ineffective assistance of counsel claims in the habeas context do not relate back to one another merely because they both involve counsel's allegedly deficient performance. See Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) (ineffective assistance claim for failure to file an appeal did not relate back to claims for failure to pursue a downward departure or failure to object to the type of drugs at issue); Valerio v. Phillips, No. 02-CV-903, 2007 WL 4191817, at *5-6 (W.D.N.Y. Nov. 21, 2007) (ineffective assistance claims premised on a conflict of interest and failure to advise regarding a plea offer do not relate back to claims premised on several allegations regarding counsel's performance at trial);Veal, 2007 WL 3146925 at *5 (new claim alleging ineffective assistance of counsel for failure to notify the defendant of a plea offer did not relate back to claims for failure to object to defendant's arrest warrant, conspiring with the prosecution, failing to move for dismissal of certain counts, and failing to object to a particular jury instruction).
[Plaintiff's] amendment goes beyond alleging a different theory of recovery. It alleges a new claim for relief. The original challenge based on BLM's "policy and practice" requires evidence showing how BLM conducts Notice mine review. The new claim alleging invalidity of the Notice regulations requires evidence of the procedures used in adopting the regulations. The original claim was premised on a theory of unlawful application of the five-acre rule. The new procedural challenge [plaintiff] attempted to add is based upon a theory of invalidity of the regulations as adopted. In short, the procedural challenge does not arise out of the same conduct or transaction. It arises out of BLM's conduct in adopting the regulations rather than BLM's "policy and practice" in Notice mine review.Id. at 1316. Similarly, the Due Process claim, which arises from the fact that the state allegedly imposed the PRS term administratively, does not relate back to the validity of the plea claim, which arises from the fact that petitioner was not informed of the length of his PRS term at the time of his guilty plea, simply because the PRS term provides an underlying factual nexus.
Petitioner cites only one case, Hiraldo, in support of the proposition that the Due Process claim relates back to the claim regarding the validity of his guilty plea. In Hiraldo, the original petition directly challenged the petitioner's guideline range and sentence under Blakely v. Washington, 542 U.S. 961 (2004). 2006 WL 1794775, at *2. His subsequent claim was for ineffective assistance of counsel regarding the assistance he received in connection with his sentence and guideline range. Id. at *3. The court held that because the operative facts for both claims arose from his guideline calculation and sentencing, the ineffective assistance of counsel claim did relate back. Id. at *4.
Hiraldo is distinguishable. There, both claims depended on details regarding the same two occurrences — the guideline range calculation and subsequent sentencing. Here, by contrast, the factual occurrences underlying the two respective claims take place at completely different times. The invalidity of plea claim arose on the record at the time of the plea allocution, while the Due Process claim arose at some later time when DOCS apparently administratively imposed the period of PRS. Thus, the factual predicates for these claims are not common, but rather are different in time and type. In sum, the Due Process claim does not relate back to the timely filed claim regarding the validity of the guilty plea.
b. Discoverable Predicate Facts
The Due Process claim still may be timely if the petitioner could not reasonably have discovered the facts giving rise to the claim until within one year of when it was brought. AEDPA provides that the one-year limitation period shall run from the latest of four possible dates of accrual. See 28 U.S.C. § 2244(d)(1). One of those possible dates of accrual is "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2254(d)(1)(D). Thus, this provision "resets the limitations period's beginning date, moving it from the time when the conviction became final, to the later date on which the particular claim accrued." See Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (internal citation omitted) (describing AEDPA's corresponding provision of 28 U.S.C. § 2255(4), which applies to federal, rather than state, habeas petitioners).
Here, the predicate fact in question is the date that DOCS imposed petitioner's PRS term. The Due Process claim accrued when DOCS administratively imposed petitioner's sentence, assuming that petitioner could have immediately discovered that fact through the exercise of due diligence. As has been well-documented in petitioner's filings — and has not been meaningfully disputed — respondent has yet to admit that DOCS ever administratively imposed the period of PRS, despite requests for the appropriate records. To the contrary, respondent made representations in state appellate court that the sentencing judge had, in fact, imposed the PRS term. Although it is now apparent that a PRS term was imposed administratively, the Court will not charge petitioner with knowledge of a fact about which respondent has failed to provide accurate information. Moreover, even if petitioner were to be charged with knowledge of the administratively imposed PRS term as of the moment it occurred, respondent has not established that it was imposed more than one year prior to the date upon which the Due Process claim was first brought. Thus, pursuant to section 2244(d)(1)(D), petitioner's Due Process claim is timely.
As the Court noted in the 9/13/07 Order, the gravamen of this claim is a violation of the principle that it is the role of the judge, and not an administrative officer, to set a defendant's sentence.
If petitioner could not have immediately discovered that his PRS had been administratively imposed by the exercise of due diligence, accrual would have been further delayed.
2. Exhaustion
In its 9/13/07 Order, the Court observed that it is possible that petitioner's Due Process claim, if timely, remains unexhausted. As set forth above, a section 2254 petition generally cannot be granted unless the petitioner has exhausted all available state court remedies. Here, petitioner concedes that he never presented his Due Process claim to the New York state courts. This is not a situation where the claim would be deemed exhausted but procedurally barred since petitioner appears to have a procedural vehicle in the state proceedings where this claim can be raised; that is, a 440.20 motion. Under these circumstances, it is appropriate to stay the proceedings here to permit petitioner to raise this issue in state court. Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001) (establishing an exception to the limitations period for "mixed" habeas petitions including both exhausted and unexhausted claims). When such a stay is granted, it should be conditioned upon petitioner's raising the issue in the state court "within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed." Id. at 381.
Petitioner argues that the Court should excuse and decide the merits of his due process claim since the circumstances here warrant an exception to the exhaustion requirement. The exhaustion requirement is subject to exceptions if it appears that "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B). Petitioner argues that this is the case here. In support of his argument, petitioner claims that although he could bring this claim before the New York courts in the form of a 440.20 motion, and indeed would likely prevail, such a procedure would be ineffective to protect petitioner's rights in this case because of the likelihood that, after entering an order vacating any DOCS-imposed PRS term, the court will impose its own PRS term, and that this would undermine the validity of the guilty plea. The Court fails to perceive how the existence of a remedy which would likely result in his obtaining the relief in state court that he seeks before this Court — the declaration that a DOCS-imposed PRS is a nullity — is ineffective to protect his rights. The possibility that thereafter the sentencing court may impose a PRS term does not render the state process ineffective. Accordingly, because the New York courts were not presented with an opportunity to address petitioner's Due Process claim, and because there exists a procedural vehicle for the claim to be presented to those courts, the claim is dismissed but the petition stayed. Petitioner has 30 days from the date of this order to bring the Due Process claim in state court. If he does not prevail on that claim in state court, he shall have 30 days from the date of the state's resolution of that claim to return to this Court.
III. Conclusion
For the foregoing reasons, petitioner's motion for reconsideration is denied. His claim that his sentence violates Due Process because it was administratively imposed is dismissed but the petition is stayed to permit him to exhaust that claim. Because Desrosiers's petition is stayed, the Court hereby administratively closes the case until either of the parties hereto moves to restore the matter to the Court's calendar.
SO ORDERED.