Opinion
20-CV-3655 (VEC) (RWL)
08-16-2021
BISMARK LITHGOW, Petitioner, v. WILLIAM F. KEYSER Respondent.
REPORT AND RECOMMENDATION TO HON. VALERIE E. CAPRONI: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
INTRODUCTION
Bismark Lithgow, pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking release from custody due to the ongoing COVID-19 pandemic. Lithgow argues that his continued incarceration violates his constitutional rights. Respondent William F. Keyser, superintendent of the facility where Lithgow is currently in custody, argues that Lithgow's habeas petition should be dismissed for two reasons: (1) the claim is not cognizable on habeas review because it presents a challenge to conditions of confinement and (2) Lithgow failed to exhaust state remedies. For the reasons explained below, this Court recommends that Respondent's motion to dismiss be GRANTED without prejudice.
FACTS AND PROCEDURAL HISTORY
On April 1, 2015, Lithgow was sentenced to incarceration for 21 years to life for his conviction of the 2013 murder of a nineteen-year-old woman. (SR at 4, 15.) Lithgow's conviction was affirmed by the New York State Supreme Court Appellate Division, First Department on April 11, 2019. See People v. Lithgow, 171 A.D.3d 517, 95 N.Y.S.3d 813 (1st Dep't), lv denied, 33 N.Y.3d 1106, 106 N.Y.S.3d 669 (2019). Lithgow is serving his sentence at the Sullivan Correctional Facility (the “Facility”) in Fallsburg, New York. (Petition at 3.)
“SR” refers to the State Court Record attached to the Declaration of Margaret A. Cieprisz (Dkt. 10).
“Petition” refers to Lithgow's petition for a writ of habeas corpus (Dkt. 2).
On April 24, 2020, Lithgow petitioned this Court of a writ of habeas corpus. Lithgow contends that the conditions of the Facility during the ongoing pandemic endanger his health and violate his constitutional rights. (Petition at 1.) He underscores the “special danger posed to inmates by the current public health crisis” and notes that the “prison was not built for this type of pandemic” because prisoner cells are close together and “there is nowhere to run or hide from this pandemic in this type of prison setting.” (Petition at 2.) Additionally, Lithgow asserts that he is especially vulnerable to COVID-19 because his respiratory difficulties, deafness, back injuries, and history of chickenpox have compromised his immune system. (Petition at 2.)
On May 20, 2021, the Honorable Valerie E. Caproni referred the case to the undersigned. (Dkt. 6.) Respondent filed a motion to dismiss Lithgow's petition on June 3, 2021. (Dkt. 9.) Three weeks later, Lithgow requested the Court to stay the current proceeding so that he could exhaust state court remedies. (Dkt. 17.) The Court granted Lithgow's request on July 20, 2020 and ordered him to file the necessary pleadings in order to initiate or continue pursuit of state remedies by September 1, 2020. (Dkt. 23.) On January 4, 2021, the Court ordered Respondent to update the Court as to the status of the state court proceedings by January 31, 2021. (Dkt. 24.)
On January 29, 2021, Respondent informed the Court that on July 6, 2020, Lithgow had filed a state habeas petition in New York State Supreme Court, Sullivan County. (Dkt. 25.) On April 29, 2021, Respondent notified the Court that the state Supreme Court dismissed Lithgow's petition on December 4, 2020 and that Lithgow received notice of the dismissal on January 27, 2021. (Dkt. 27.) Lithgow's deadline to appeal the decision was March 3, 2021, but Lithgow did not file a notice of appeal, thereby failing to exhaust state remedies. (Dkt. 27.)
The Court lifted the stay on April 30, 2021 and invited Lithgow to submit an opposition to the pending motion to dismiss by June 15, 2021. (Dkt. 28.) Lithgow did not file an opposition. On June 29, 2021, the Court sua sponte extended Lithgow's time to file any opposition to July 30, 2021. (Dkt. 29.) The Court's order warned Lithgow that July 30, 2021 would be his final opportunity to submit any opposition and that if he did not file any opposition by that deadline, the Court would deem the motion fully submitted and proceed to resolve the matter. (Dkt. 29.) As of July 30, 2021, and through the date of this Report And Recommendation, Lithgow had not filed any opposing papers or request for extension. Accordingly, the Court deems the motion fully submitted.
LEGAL STANDARDS
The Antiterrorism And Effective Death Penalty Act (“AEDPA”) provides a remedy for state prisoners when their continued custody is in violation of federal law. 28 U.S.C § 2254(a). Under AEDPA, an application for a writ of habeas corpus on behalf of a state prisoner “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” either:
(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.28 U.S.C. § 2254(d). The habeas petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
AEDPA also imposes a number of threshold requirements on habeas petitioners, including that petitioners first exhaust their claims in state court. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731(1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). The exhaustion requirement is designed to provide state courts with the “‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'” Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971)); see Galdamez, 394 F.3d at 72 (“Comity concerns lie at the core of the exhaustion requirement”).
DISCUSSION
Mindful of the obligation to liberally construe pro se pleading and interpret them “to raise the strongest arguments that they suggest, ” this Court has reviewed Lithgow's habeas petition in light of the “special solicitude” due pro se litigants and finds that Petitioner has failed to exhaust his claims and recommends granting Respondent's motion to dismiss the petition without prejudice. Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks omitted); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).
A. The Court Declines To Dismiss The Petition On Grounds It Fails To State A Cognizable Claim Under Habeas Review
Respondent argues that Lithgow's habeas petition should be dismissed because the claim “is limited to the assertion that the conditions at [the Facility] expose him to a constitutionally proscribed risk of serious illness or death” and “[s]uch a claim is properly the subject of a civil rights action under 42 U.S.C. § 1983, not a habeas corpus petition under 28 U.S.C. § 2254.” (Def. Mem. at 4.) The question whether a habeas corpus petition or a § 1983 action is the proper vehicle for prisoners to challenge the conditions of their confinement and seek release from custody due to the COVID-19 pandemic has prompted varying answers among the district courts within this Circuit. See, e.g., Acevedo v. Capra, No. 20-CV-7361, 2021 WL 2581258, at *10 (S.D.N.Y. June 23, 2021) (finding no basis for habeas claim and holding that “when a prisoner challenge[s] the conditions of his confinement he must do so in an action under 42 U.S.C. § 1983”); Steward v. Wolcott, No. 20-CV-6282, 2020 WL 2846949, at *4 & n.5 (W.D.N.Y. June 2, 2020) (holding that “Petitioner's claim regarding his conditions of confinement must be brought under Section 2254” and noting that Section 1983 “does not afford claimants the opportunity to seek release from custody”); Elleby v. Smith, No. 20-CV-2935, 2020 WL 2611921, at *3 (S.D.N.Y. May 22, 2020) (acknowledging the split of authority, recognizing the absence of any Second Circuit opinion on point, and declining to dismiss petitioner's habeas petition on these grounds); Slater v. Keyser, No. 20-CV-3012, 2020 WL 4016759, at *3 (S.D.N.Y. July 16, 2020) (same).
“Def. Mem.” refers to the Memorandum Of Law In Support Of Motion To Dismiss The Petition For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 filed on June 3, 2020 (Dkt. 11).
In Acevedo, Judge McMahon noted that the issue of whether habeas petitions raising conditions of confinement claims related to the COVID-19 pandemic are proper or instead should be brought only as § 1983 actions is “unresolved.” Acevedo, 2021 WL 2581258 at *9. Judge McMahon compared the facts presented in that case to the Second Circuit's decision in Fielding v. LeFevre, 548 F.2d 1102 (2d Cir. 1977), which held that the remedy of a prisoner's challenge to conditions of confinement lay in § 1983 and not habeas corpus. Judge McMahon reasoned that the Second Circuit in Fielding focused on the nature of the complaint (conditions of confinement) rather than the remedy sought (release from custody) and held that Acevedo and Fielding were indistinguishable. Acevedo, 2021 WL 2581258 at *8.
The Court finds Judge McMahon's reasoning in Acevedo instructive and persuasive. Nonetheless, the Court recommends not determining the motion to dismiss on that ground as there are other grounds for doing so that can be relied on with certainty. In particular, the habeas petition should be dismissed due to Lithgow's failure to exhaust his claim at the state court level.
To the extent Lithgow's claim must be pursued as a Section 1983 claim, the Court theoretically could recast his claim as such. See Kielly v. Fitzpatrick, No. 20-1496, Dkt. 20 (2d Cir. June 4, 2020) (Petitioner's habeas claim, arguing that her guilty plea was involuntary because her conditions of confinement were unforeseeable due to COVID-19, was remanded to the district court to evaluate “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”); Sanchez v. Portuondo, No. 20-1391, Dkt. 20 (2d Cir. Aug. 6, 2020) (remanding to the district court to determine whether petitioner's habeas petition challenging his confinement due to the pandemic should continue as a Section 2254 claim or proceed under Section 1983). The Court recommends not restyling Lithgow's claim as a Section 1983 claim, however, principally because Lithgow did not file any opposition to the motion to dismiss nor take any other action to further prosecute his claim. See Acevedo, 2021 WL 2581258 at *10 (declining to restyle habeas claim as one under Section 1983). Of course, if Lithgow believes he has a good faith basis for pursuing a Section 1983 claim, he may attempt to do so. Further, Respondent has suggested that Lithgow may have other procedural avenues to pursue his claim in state court, such as filing a successive habeas petition or filing an Article 78 proceeding. (Dkt. 27.) The Court takes no position as to whether either of those avenues is viable.
B. Lithgow Failed To Exhaust His State Court Remedies
“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan, 526 U.S. at 842, 119 S.Ct. at 1731. The Second Circuit has adopted the Supreme Court's warning against “interpreting this [exhaustion] provision too narrowly”; exhaustion requires “‘only that state prisoners give state courts a fair opportunity to act on their claims.'” Galdamez, 394 F.3d at 72 (emphasis in original) (quoting O'Sullivan, 526 U.S. at 844, 119 S.Ct. at 1732). As a result, a petitioner need not invoke every possible avenue of state court review but instead must “‘give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'” Id. at 73 (emphasis in original) (quoting O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732).
A “complete round” requires presenting the federal claim to the highest court of the state, which in this case is the New York Court of Appeals. See id. (citing Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000)). Furthermore, a petitioner must have “‘fairly presented his claims to the state courts,' such that the state court had a fair opportunity to act.” Id. (alteration and citation omitted) (emphasis in original) (quoting O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734). Although the petitioner need not “‘cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
This Court previously issued a stay to give Lithgow the opportunity to exhaust his state court remedies. (Dkt. 23.) Lithgow started down that path by filing a state habeas petition. But after that petition was denied, Lithgow did not file a notice of appeal. As a result, he did not provide the New York state courts with “one full opportunity” to resolve his constitutional claims thereby failing to exhaust his state court remedies. See Galdamez, 394 F.3d at 73; Richardson v. Superintendent Of Mid-Orange Correctional Facility, 621 F.3d 196, 201 (2d Cir. 2010) (“Exhaustion requires that the prisoner fairly present the federal claim in each appropriate state court (including a state supreme court with powers of discretionary review)” (internal quotation marks omitted)); Pollack v. Patterson, No. 10-CV-6297, 2012 WL 2369493, at *3 (S.D.N.Y. June 22, 2012) (Exhaustion requirement not met where petitioner did not appeal the adverse determination in his state habeas proceeding to the Appellate Division or the New York Court of Appeals).
The habeas statute provides two narrow exceptions to the exhaustion requirement: (1) if “there is an absence of available State corrective process, ” 28 U.S.C. § 2254(b)(1)(B)(i); or (2) if “circumstances exist that render such process ineffective to protect the rights of the applicant, ” 28 U.S.C. § 2254(b)(1)(B)(ii). Lithgow has not demonstrated that either of these exceptions are met, and the Court is aware of no circumstances that would bring them into play. Lithgow states that his exhaustion requirements “can be waived in light of the extraordinary threat posed - in his unique circumstances - by the COVID-19 [pandemic].” (Petition at 1.) However, Lithgow provides no authority for this assertion, and the Court is not aware of any such exception other than those provided by AEDPA.
Lithgow failed to appeal his claim at the state level, and the time to do so has irretrievably expired. Accordingly, the petition should be dismissed. As Lithgow may have other means of challenging his conditions of confinement or exhausting his claim, his claims should be dismissed without prejudice. See Elleby, 2020 WL 2611921 at *4 (dismissing pandemic habeas claim without prejudice for failure to exhaust); Slater, 2020 WL 4016759 at *5 (S.D.N.Y. July 16, 2020) (same).
CONCLUSION
For the reasons explained above, the Court recommends that the motion to dismiss be GRANTED without prejudice.
RIGHT TO OBJECT AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.