Walker v. Keiser

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL WALKER,

Petitioner,

MEMORANDUM AND ORDER

-against-

18-cv-7227(KAM)(LB)

WILLIAM KEISER,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

On December 18, 2018, pro se petitioner Michael Walker

(“Mr. Walker” or “Petitioner”) filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1,

“Petition.”) Because Mr. Walker’s potential remedies in state

court remain unexhausted, the Petition is dismissed without

prejudice for failure to comply with the exhaustion requirement

set forth in the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). 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 . . . the applicant has exhausted the remedies available

in the courts of the State.”).

Background

I. The Criminal Offenses and Plea Agreement

On September 13, 2016, Mr. Walker unlawfully entered a

building with the intent to commit a crime therein. (ECF No. 7,

Affidavit in Opposition to Petition for a Writ of Habeas Corpus

(“Opp.”); ECF No. 7-2, Transcript of Mr. Walker’s Plea

Proceeding (“Plea Tr.”), at 11:18-23.) The State charged Mr.

Walker with, inter alia, Arson in the Third Degree (N.Y. Penal

Law § 150.10(1)) and Burglary in the Third Degree (N.Y. Penal

Law § 140.20). (ECF No. 7-7, Decision and Order Denying Mr.

Walker’s Motion to Set Aside Sentence (“Decision Denying Motion

to Set Aside Sentence”), at 1-2.)

Mr. Walker was involved in a separate incident on

January 8, 2017, during which Mr. Walker attempted to forcibly

steal property from a jewelry store and, in the course of the

commission of that crime, caused injury to the store’s owner.1

(Plea Tr. at 11:04-11.) As a result of that incident, the State

charged Mr. Walker with, inter alia, two counts of Robbery in

the First Degree (N.Y. Penal Law § 160.15(2) & (4)) and one

count of Robbery in the Second Degree (N.Y. Penal Law §

160.10(2)(A)). (Decision Denying Motion to Set Aside Sentence,

at 2.)

1 Respondent provides the following overview of Mr. Walker’s conduct: Mr.

Walker entered a jewelry store, pulled out a gun, and ordered two of the

individuals working at the store, including the store’s owner, Zafar Iqbal

(“Mr. Iqbal”), to get on the ground. (Opp. ¶ 4.) Mr. Walker struck Mr.

Iqbal on the back of the head with the gun. (Id.) Mr. Walker then led the

two individuals to the back of the store, where the store kept a safe. (Id.)

Mr. Walker hit both individuals, opened the safe, took jewelry, and attempted

to flee. (Id.) Mr. Iqbal and several bystanders subdued Mr. Walker during

his attempted flight. (Id.) Police officers then arrested Mr. Walker.

(Id.)

On August 15, 2017, Mr. Walker pleaded guilty before

the Supreme Court of the State of New York, Kings County (the

“Supreme Court”) on both of the above indictments pursuant to a

negotiated plea. (Id.) On the first indictment, Mr. Walker

pleaded guilty to Burglary in the Third Degree, a class D non-

violent felony, with a stipulated sentence of three-and-a-half

years. (Id.) On the second indictment, Mr. Walker pleaded

guilty to Attempted Robbery in the Second Degree, a class D

violent felony (as a lesser included count of the Robbery in the

Second Degree charge contained in the indictment), with a

stipulated sentence of twelve years to life. (Id.)

The Supreme Court advised Mr. Walker during his plea

allocution that he qualified as a “mandatory persistent”

offender. (Id.) The State later filed a predicate statement

setting forth Mr. Walker’s convictions and sentences on prior

violent felonies. (Id.) Mr. Walker was arraigned on the filed

predicate statement and admitted he was convicted of the

felonies enumerated therein. (Id.) Mr. Walker was then

adjudicated a persistent violent felony offender. (Id.)

On August 30, 2017, Mr. Walker appeared before the

Supreme Court for sentencing. (Id.) The Supreme Court gave Mr.

Walker an opportunity to address the court before his sentence.

(Id.) Mr. Walker declined to address the court. (Id.) The

Supreme Court imposed the stipulated sentence of three-and-a-

half years for Burglary in the Third Degree and twelve years to

life for Attempted Robbery in the Second Degree. (Id.)

II. The Subsequent Appeals

a. The Direct Appeal

Mr. Walker secured the appointment of Appellate

Advocates as counsel for his appeal. (See ECF No. 21-1,

Opposition to Motion to Stay, Decision & Order on Motion to

Relieve Counsel.) Lynn W. L. Fahey (“Ms. Fahey”) of Appellate

Advocates reviewed Mr. Walker’s case and found there to be “no

issue to raise on [his] appeal.” (Pet. 28 (enclosing letter

from Appellate Advocates, Sept. 7, 2018).) Ms. Fahey, however,

indicated that she would file an Anders brief on Mr. Walker’s

behalf, and that he would have a chance to file a pro se brief

arguing that he was improperly adjudicated as a persistent

violent felony offender, if he so desired.2 (Id.)

On September 21, 2018, Mr. Walker wrote to the Supreme

Court of the State of New York, Appellate Division, Second

Department to request that the court relieve Appellate Advocates

as counsel and allow him to prosecute his appeal pro se.

(Decision & Order on Motion to Relieve Counsel.) On April 5,

2019, the Appellate Division granted Mr. Walker’s motion to

2 After Mr. Walker apparently objected to Ms. Fahey’s position, Appellate

Advocates sent him a letter echoing Ms. Fahey’s advice. (Pet. 29 (enclosing

letter from Appellate Advocates, Sept. 19, 2018).)

relieve counsel and allowed Mr. Walker to proceed pro se on his

appeal. (Id.)

On October 3, 2019, the Appellate Division sent a

letter to Mr. Walker indicating that his pro se brief was due

July 17, 2019, but that he had not yet filed such a brief. (ECF

No. 21-2 (Oct. 3, 2019 letter).) The Appellate Division

informed Mr. Walker that he must “advise the Court of [his]

intentions within 30 days of th[e] letter.” (Id.) Mr. Walker

replied and requested filing instructions for his pro se brief

on November 30, 2019 and December 12, 2019. (ECF No. 21-3 (Dec.

27, 2019 letter).) By letter dated December 27, 2019, the

Appellate Division notified Mr. Walker of the appropriate

procedure for filing his pro se brief. (Id.) Mr. Walker filed

his appeal brief on February 5, 2020. (ECF No. 22 (May 22, 2020

letter from Respondent).) The State’s response is due July 20,

2020. (Id.)

b. The Collateral Attacks

During the pendency of his direct appeal, Mr. Walker

collaterally attacked his conviction and sentence. On January

11, 2018, Mr. Walker moved to set aside his sentence pursuant to

New York Criminal Procedure Law § 440.20. (See ECF No. 7-5

(Defendant’s Motion to Set Aside the Sentence).) Mr. Walker

argued, inter alia, that plea counsel “was ineffective in

failing to challenge [the] legality of [Mr. Walker’s] prior

conviction [for] Burglary in the [Third] [D]egree.” (Id. at 3.)

The Supreme Court denied Mr. Walker’s motion to set aside his

sentence on May 30, 2018. (Decision Denying Motion to Set Aside

Sentence.) Both the Appellate Division (see ECF No. 7-8) and

the Court of Appeals (see ECF No. 7-9) denied Mr. Walker’s

requests to appeal the Supreme Court’s judgment.

On June 27, 2018, Mr. Walker moved to vacate his

conviction pursuant to New York Criminal Procedure Law § 440.10.

(ECF No. 7-10 (Defendant’s Motion to Vacate the Judgment of

Conviction).) The Supreme Court denied Mr. Walker’s motion on

November 30, 2018. (ECF No. 7-12 (Decision and Order Denying

Motion to Vacate Judgment of Conviction).) Mr. Walker filed an

application for leave to appeal, which was denied on July 9,

2019. (May 22, 2020 letter from Respondent.)

III. The Instant Petition

On December 18, 2018, before the completion of his

direct appeal, and while his collateral attacks had been only

partially exhausted, Mr. Walker filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Respondent answered

Mr. Walker’s petition on April 11, 2019. Mr. Walker has filed

several “supplemental” filings, adding additional facts and

legal argument since that time. (See ECF Nos. 9, 10, 11, 12,

13, 14, 16, 17, 18, 19, 20.)

On December 11, 2019, Mr. Walker filed a motion to

stay the instant action. (ECF No. 15.) Mr. Walker’s motion

stated:

[A]round the period of February, 2019 I received a court

order stating that the People have until April of 2019 to

respond. However, I did receive a notice from the

Appellate Court concerning my Direct Appeal. I recently

returned a notice explaining the reason for my delay in

submission of Direct Appeal was due to deficiencies in

receiving reasonable accommodations when entering a new

facility due to a drop in my classification. Recently, I

have been provided with the minimum devices in order to

move forward with my direct appeal. When provided the

ability to now provide the court facts. I am required to

place you on notice that my sight level is rapidly

deteriorating due to my condition of advanced stages of

Glaucoma. Therefore, I humbly request that you hold this

Motion in abeyance until my direct appeal is decided within

the 2nd District Court in means of safe guarding my efforts

in procedurally addressing the higher court, in which I

will not be able to accomplish in the near future.

(Id.) The Court directed Respondent to file a response to Mr.

Walker’s motion to stay. (ECF Dkt. Order, Dec. 18, 2019.)

On January 3, 2020, Respondent opposed Mr. Walker’s

motion to stay. (ECF No. 21.) Respondent’s opposition focused

on Mr. Walker’s failure to perfect his direct appeal before

filing the instant petition. (Id. at 1.) On May 18, 2020, this

Court ordered Respondent to file an update on the status of Mr.

Walker’s direct appeal and collateral attacks. (ECF Dkt. Order,

May 18, 2020.) Respondent filed its response on May 22, 2020,

advising that Respondent’s appellate brief was due in July 2020,

and thus the appeal was still pending. (ECF No. 22.)

Legal Standard

Pursuant to 28 U.S.C. § 2254, “a district court shall

entertain an application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). AEDPA narrowed the scope of federal habeas

review of state convictions where the state court adjudicated a

petitioner’s federal claim on the merits. 28 U.S.C. § 2254(d).

AEDPA’s standard is a highly deferential standard of review,

“requiring courts to assess whether the state court’s decision

was ‘so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Garner v. Lee, 908

F.3d 845, 861 n.14 (2d Cir. 2018), cert. denied, 139 S. Ct. 1608

(2019).

Under AEDPA, the reviewing court may grant habeas

relief only if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” or “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). This “standard is

intentionally ‘difficult to meet.’” Woods v. Donald, 575 U.S.

312, 316 (2015) (quoting White v. Woodall, 572 U.S. 415, 419

(2014)). A petitioner will prevail on a claim under 28 U.S.C. §

2254(d)(1) only by showing “the state court arrive[d] at a

conclusion opposite to that reached by [the United States

Supreme] Court on a question of law or if the state court

decide[d] a case differently than [the United States Supreme]

Court has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

“It is well-settled that a federal district court ‘may

not grant the habeas petition of a state prisoner unless it

appears that the applicant has exhausted the remedies available

in the courts of the State.” Frazier v. Armstrong, 2008 U.S.

Dist. LEXIS 101280, at *2 (N.D.N.Y. Dec. 16, 2008) (quoting

Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir. 2003) (internal

quotation marks omitted)); see also Ellman v. Davis, 42 F.3d

144, 147 (2d Cir. 1994) (holding that before addressing the

merits of any constitutional issue raised in a petition for a

writ of habeas corpus under 28 U.S.C. § 2254, a court “must find

that the petitioner has ‘exhausted the remedies available in the

courts of the State, or that there is either an absence of

available State corrective process or the existence of

circumstances rendering such process ineffective to protect the

rights of the [petitioner].’”).

“The federal habeas corpus exhaustion requirement is

grounded in principles of federal-state comity.” Ellman, 42

F.3d at 147 (citing Coleman v. Thompson, 501 U.S. 722, 731

(1991)). “State courts, like federal courts, are obliged to

enforce federal law.” Galdamez v. Keane, 394 F.3d 68, 72 (2d

Cir. 2005). Comity therefore “dictates 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.” Id. at 844.

Discussion

For Petitioner to have “exhaust[ed] state court

remedies, [he] must [have] utilize[d] every avenue of state

court review.” Jordan v. Bailey, 985 F. Supp. 2d 431, 437

(S.D.N.Y. 2013). “Only when a criminal defendant has no further

state alternatives may she seek relief by way of a federal

habeas petition.” Id. The only “narrow exception to this rule

[is] for rare instances in which exhaustion is, for some reason,

futile.” Id. (citing Ellman, 42 F.3d at 149). “Futility is

present when there is a ‘complete absence of a mechanism for

correction of the alleged unconstitutional violation’ or the

petitioner is ‘precluded by an unconscionable breakdown from

using the process that exists.’” Id. (quoting Francis S. v.

Stone, 995 F. Supp. 368, 380 (S.D.N.Y. 1998)).

Petitioner’s motion to stay acknowledged that his

criminal appeal was still pending with the Appellate Division.

Moreover, that appeal remains pending, as the State’s response

to Petitioner’s appellate brief has not yet been filed. (May

22, 2020 letter from Respondent.) Without evidence that any

state remedies would be futile, it was premature for Mr. Walker

to pursue a petition for habeas relief in this Court. See,

e.g., Roberites v. Colly, 546 F. App’x 17, 20 (2d Cir. 2013)

(“[I]n light of the fact that [the petitioner’s] appeal is now

moving forward, we will not ourselves address the merits of

[petitioner’s] challenge to his conviction [through a § 2254] in

advance of state courts.”); Intaquab Ali v. Superintendent of

Otisville Corr. Facility, 2015 U.S. Dist. LEXIS 128217, at *3

(E.D.N.Y. Sep. 23, 2015) (“The [§ 2254] Petition, therefore, is

premature, as it is undisputed that, when it was filed,

Petitioner’s direct appeal from his judgment of conviction was

still pending before the intermediate appellate courts in New

York.”); Frazier, 2008 U.S. Dist. LEXIS 101280, at *4

(dismissing § 2254 petition without prejudice for failure to

exhaust state remedies where petitioner advised court that his

criminal appeal was still pending with the Appellate Division);

Best v. New York, 2016 U.S. Dist. LEXIS 89756, at *1 (E.D.N.Y.

July 7, 2016) (“Petitioner may only seek federal habeas review

of his conviction once he has exhausted his state court

remedies, i.e., once he completes the appellate review process

in state court.”).

The Court’s options, therefore, are to dismiss Mr.

Walker’s petition without prejudice, or to stay this action

pending exhaustion of Mr. Walker’s direct appeal. See Intaquab

Ali, 2015 U.S. Dist. LEXIS 128217, at *8. The United States

Supreme Court has held that “[s]taying a federal habeas petition

frustrates AEDPA’s objective of encouraging finality of state

court judgments,” and therefore “stay and abeyance should be

available only in limited circumstances.” Rhines v. Weber, 544

U.S. 269, 277 (2005). A stay “is only appropriate when the

district court determines there was good cause for the

petitioner’s failure to exhaust his claims first in state

court.” Id.

In light of AEDPA’s objectives, dismissal is the more

appropriate course in this action. The facts of this case do

not present the “limited circumstances” in which a stay is

warranted. Petitioner’s motion for a stay argued that “the

reason for [his] delay in submi[tting] [his] [d]irect [a]ppeal

was due to deficiencies in receiving reasonable accommodations

when entering a new facility due to a drop in [his]

classification.” (Motion to Stay.) Petitioner indicated that

his sight is “rapidly deteriorating due to [his] condition of

advanced stages of Glaucoma” (id.), but Petitioner did not

indicate why his reported disability constitutes good cause for

his failure to exhaust his direct appeal.

Moreover, Petitioner had adequate time to exhaust his

available state remedies before bringing the instant habeas

action. The one-year limitations period under AEDPA runs “from

the last of” a series of dates including “the date on which the

judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review,” 28 U.S.C. §

2244(d)(1)(A), and Mr. Walker’s judgment has yet to become final

by the conclusion of direct review.

Conclusion

For the reasons stated above, Mr. Walker’s motion to

stay is DENIED, and his petition for a writ of habeas corpus is

dismissed without prejudice. Because the Court declines to

reach the merits of Mr. Walker’s petition and dismisses it

purely on procedural grounds, Mr. Walker’s filing of a

subsequent petition asserting the same grounds for relief shall

not count as a “second” or “successive” petition under AEDPA.

See Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003). As

Mr. Walker has failed to make a “substantial showing of the

denial of a constitutional right,” a certificate of

appealability will not issue. 28 U.S.C. § 2253(c)(2); see Fed.

R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336

(2003); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112

(2d Cir. 2000).

After fully exhausting any challenges to his

conviction in the state courts, Mr. Walker may, if he so

chooses, file a petition seeking a writ of habeas corpus

regarding that conviction in this District.

The Clerk of Court is respectfully requested to serve

a copy of this Memorandum and Order on Mr. Walker, note service

on the docket, and close this case.

SO ORDERED.

Dated: Brooklyn, New York

May 26, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge