Safran v. The People of the State of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DAVID J. SAFRAN

Petitioner;

1:22-cv-3177 (NRM)

v.

MEMORANDUM & ORDER

THE PEOPLE OF THE STATE OF

NEW YORK and NASSAU COUNTY

POLICE DEPARTMENT

Respondents.

NINA R. MORRISON, United States District Judge:

Pending before the Court is Respondent’s motion to dismiss Petitioner David

J. Safran’s petition for a writ of habeas corpus. The Court has considered

Respondent’s motions, Respondent’s supplemental briefing, Petitioner’s written

responses, as well as statements made by the parties during oral argument. For the

reasons outlined herein, Petitioner’s petition is DISMISSED for failure to exhaust

his state court remedies.

FACTS AND PROCEDURAL HISTORY

On April 12, 2018, Petitioner David Jeffrey Safran (“Petitioner”) was arrested

in connection with a car accident in Nassau County, New York. ECF No. 18 at 5.

Petitioner was indicted on various counts, including assault, reckless

endangerment, leaving the scene of an accident, and reckless driving. ECF No. 18

at 5-6. Petitioner proceeded pro se and, after three years in pre-trial detention,

pleaded guilty on April 19, 2021, to two counts of second-degree assault and one

count of leaving the scene of an accident. See ECF No. 18-2. On May 17, 2021,

Justice Teressa Corrigan of the New York Supreme Court (Nassau County)

sentenced Petitioner to seven years in prison, inclusive of time already served in

pre-trial detention. See ECF 18-3 at 58.1 On May 21, 2021, Justice Corrigan

granted Petitioner’s application for poor person relief for purposes of his appeal.

EFF 18-8 at 5.

Shortly after his sentencing, Petitioner, proceeding pro se, appealed his

conviction to the Appellate Division of the New York Supreme Court. See ECF 18-8.

The Appellate Division rejected Petitioner’s appeal several times on procedural

grounds with leave to refile because Petitioner had not first moved for the Appellate

Division’s leave to proceed pro se, and Petitioner failed to comply with certain

stylistic requirements. See ECF No. 18-9; ECF No. 18-10 at 1-2. Petitioner never

apparently corrected these errors, and therefore never perfected his appeal.

While his direct appeal was still under consideration by the Appellate

Division, Petitioner also filed a post-conviction application under N.Y. C.P.L. §

440.10 on June 17, 2021 in New York Supreme Court (Nassau County). See ECF

No. 18-4 at 1. On September 16, 2021, that Court concluded that each of

Petitioner’s claims must be raised on direct appeal, rather than in an application for

1 According to information available online through the Department of

Corrections and Community Supervision, Petitioner is parole eligible on April 9,

2024, and his latest possible release date is April 9, 2025.

post-conviction relief, and denied Petitioner’s motion. ECF No. 18-7 at 3. Petitioner

did not seek leave from the Appellate Division to appeal the trial court’s decision.

ECF 18 at 8. However, Petitioner seemingly filed an additional § 440 motion,

apparently directly with the Appellate Division, in November 2021. See ECF No.

18-11.

While the above motions were pending, Petitioner filed the present petition

for a writ of habeas corpus on May 26, 2022. ECF No. 1. Respondent moved to

dismiss Petitioner’s petition on August 30, 2022 for failure to exhaust his state

court remedies. ECF No. 18. On August 31, 2022, Judge Pamela Chen, the district

judge to whom this action was previously assigned, noted that Respondent had

moved to dismiss the petition only on procedural grounds and ordered Respondent

to file supplemental briefing on the merits of the petition, see Text Order dated

August 31, 2022, which Respondent did on October 13, 2022. ECF No. 24.

This Court heard oral argument on the motion via telephone conference on

January 11, 2023. At that time, the Court also asked Petitioner whether he wished

to have the assistance of counsel in litigating the procedural defenses raised by

Respondent and/or the underlying merits of his petition. Petitioner declined the

Court’s offer to consider appointment of counsel, stating that he believed he was

highly familiar with the record and wished to continue to represent himself in this

action.

At the close of oral argument, the Court ordered Respondent to file additional

supplemental merits briefing on certain of Petitioner’s claims, which Respondent

did on February 17, 2023. ECF No. 40. Since initiating this action, Petitioner has

also filed numerous letters and motions with the Court, both in response to

Respondent’s motions and to raise standalone arguments. See, e.g., ECF Nos. 9-15;

ECF Nos. 16-17; ECF Nos. 20-23; ECF Nos. 25-28; ECF No. 30-32; ECF No. 34-35;

ECF No. 37-39; ECF No. 41; ECF No. 43-52.

LEGAL STANDARD AND ANALYSIS

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) generally

requires a petitioner to have exhausted his state court remedies prior to filing his

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Because the exhaustion

doctrine is designed to give the state courts a full and fair opportunity to resolve

federal constitutional claims before those claims are presented to the federal

courts,” a habeas petitioner must give the state the chance to review his claims by

invoking “one complete round” of an available state judicial review procedure.

O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The petitioner may satisfy this

requirement with respect to a particular claim either by completing a full round of

direct appellate review that includes that claim, or a full round of state post-

conviction review that includes that claim. Harvey v. Portuondo, 98-cv-7371, 2002

WL 2003210, at *5 (E.D.N.Y. Aug. 5, 2002).

However, in New York state, a petitioner must avail himself of slightly

different appellate procedures for purposes of exhaustion, depending on whether he

has raised his claim on direct appeal or through an application for post-conviction

review. Daye v. Attorney Gen., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (“Exhaustion of

available state remedies requires presentation of the claim to the highest state

court from which a decision can be had.” (emphasis added)). On direct appeal, a

defendant exhausts his claims once his motion for leave to appeal a decision by the

Appellate Division has been denied by the New York Court of Appeals. See, e.g.,

Borthwik v. Lavalley, 10-cv-556, 2014 WL 4794413, at *5 (N.D.N.Y. Sept. 14, 2014)

(“Having failed to present this [direct appeal] claim to the New York Court of

Appeals, Petitioner has failed to exhaust it.”); Ramos v. Superintendent, Sing Sing

Correctional Facility, 11-cv-4929, 2013 WL 7046334, at *18 (S.D.N.Y. Sept. 19,

2013) (“Petitioner failed to present this claim in his letter requesting leave to appeal

to the New York Court of Appeals and thereby failed to exhaust his claim.”); Brown

v. Ercole, 07-cv-11609, 2009 WL 1390854, at *4 (S.D.N.Y. May 13, 2009). On post-

conviction review under N.Y. C.P.L. § 440.10, however, an applicant may not appeal

to the Appellate Division as of right, but instead must seek leave to appeal to that

court. See Davis v. Griffin, 16-cv-550, 2019 WL 1384587, at *2 n.1 (Mar. 27, 2019)

(citing N.Y. C.P.L. § 450.15(1)). Because a denial by the Appellate Division for leave

to appeal a trial court’s denial of an applicant’s § 440 motion “is not reviewable by

the New York Court of Appeals,” the claims raised in a such a motion are

considered exhausted for federal habeas purposes once the Appellate Division has

denied leave to appeal. Coke v. Superintendent, Green Haven Correctional Facility,

06-cv-811F, 2009 WL 3162486, at *1 (W.D.N.Y. Sept. 29, 2009). See also

DiValentino v. Miller, 21-cv-4534, 2022 WL 2048211, at *3 (S.D.N.Y. June 7, 2022)

(“The claims in that motion were fully exhausted on June 12, 2020, when the

Appellate Division denied Petitioner’s motion to reargue the denial of his

application for leave to appeal the denial of his § 440.10 motion.”); Reyes v. Phillips,

02-cv-7319, 2005 WL 475544, at *5 (S.D.N.Y. Mar. 1, 2005) (“Failure to seek leave to

appeal the denial of a § 440.10 motion to the Appellate Division constitutes failure

to exhaust the claims raised in that motion.” (citing Pesina v. Johnson, 913 F.2d 53

(2d Cir. 1990)).

In the present action, Petitioner has failed to exhaust his state court

remedies with respect to any of his claims. Although Petitioner appealed his

conviction to the Appellate Division, see ECF No. 18-8, that court apparently never

rendered a decision on Petitioner’s appeal because Petitioner failed to comply with

certain stylistic requirements and impermissibly attempted to proceed pro se

without first seeking leave of the court to do so. See ECF No. 18-9; ECF No. 18-10

at 1-2. Petitioner has apparently not yet corrected this deficiency. To the extent

the Appellate Division’s letter to Petitioner informing him of this procedural defect

can be construed as an order dismissing his appeal, Petitioner never sought leave to

appeal the Appellate Division’s order with the New York Court of Appeals.

Therefore, for exhaustion purposes, Petitioner has yet to complete a full round of

direct appellate review of his conviction.

Petitioner has also failed to complete a full round of post-conviction review.

Petitioner’s § 440.10 application was dismissed by the New York trial court on

September 16, 2021, see ECF No. 18-7 at 3, and Petitioner never apparently sought

leave to appeal from the Appellate Division. Therefore, for exhaustion purposes,

Petitioner has yet to complete a full round of post-conviction review. See Reyes,

2005 WL 475544, at *5.

Although Petitioner apparently filed a motion with the Appellate Division in

November 2021, it is unclear whether this motion refers to Petitioner’s direct

appeal, his § 440.10 application, or is unrelated altogether. See ECF No. 18-11. In

any event, this motion does not render any of Petitioner’s claims exhausted. To the

extent this motion constitutes a direct appeal of Petitioner’s conviction to the

Appellate Division, Petitioner has still not exhausted his state court remedies on

direct review, because (1) the record indicates that the Appellate Division has not

yet ruled on this motion, and (2) even if it has, the record indicates that Petitioner

did not seek leave of the New York Court of Appeals to review the Appellate

Division’s decision. To the extent that the motion is an appeal of Petitioner’s §

440.10 application dismissed on September 16, 2021, Petitioner has still not

exhausted his state court remedies because (1) Petitioner must first seek leave to

appeal a § 440.10 application with the Appellate Division under New York state

law, which he did not apparently do, and (2) in any event, the record indicates that

the Appellate Division never ruled on this motion.

For these reasons, the claims that Petitioner raises in the present action are

all unexhausted and therefore unreviewable by this Court.2

2 It is possible, though not entirely clear from the record, that Petitioner’s

claims are exhausted but nonetheless are procedurally defaulted for a host of

Conclusion

For the reasons outlined herein, Petitioner’s petition for writ of habeas corpus

is dismissed. Petitioner is encouraged to raise his constitutional challenges to his

conviction in state court, if that path is still available to him. The Court also notes

that it has entered this order based on the state court record available to it, which

was provided to the Court by Respondent in August 2022. If Petitioner believes

that the Court’s exhaustion analysis is based on an incomplete record, he may cure

his failure to exhaust by doing one of the following within 30 days of this order:

(1) File a record with this Court demonstrating that Petitioner has completed a

full round of state court review on direct appeal. To do this, Petitioner must

file with this Court (a) an order from the Appellate Division denying

Petitioner’s direct appeal, and (b) an order from the New York Court of

Appeals denying Petitioner leave to appeal.

reasons: for instance, the state court deadline by which Petitioner must raise his

claims may have lapsed, and the trial court dismissed Petitioner’s § 440 application

because the claims he raised were record-based and therefore reviewable only on

direct appeal. See Roman v. Abrams, 822 F.2d 214, 222 (2d Cir. 1987) (“It is well

established that when a state prisoner has failed to raise his federal constitutional

claim in the state courts in accordance with state procedural rules, including those

requiring that claims of constitutional defects in the trial be raised on direct appeal

from a conviction, there has been a procedural default that bars federal habeas

review.”); cf. Ramos, 2013 WL 7046334, at *18 (“Because this claim appears on the

trial record, however, it may be deemed exhausted and procedurally defaulted

because Petitioner no longer has recourse on this claim in the state courts.” (citing

N.Y. C.P.L. § 440.10(2)(C)). It is unclear to the Court, however, whether Petitioner

can still perfect his direct appeal. In light of Petitioner’s failure to exhaust his state

court remedies, the Court declines to reach the question of procedural default,

especially because actions dismissed for reasons of procedural default are typically

dismissed with prejudice. See 2 Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice and Procedure § 23.1 (“If there is a possibility that state remedies

still may be available . . . the appropriate course is to dismiss the claim without

prejudice to allow the petitioner to pursue the unexhausted state remedies and

thereby enable the state courts to resolve the ambiguity regarding the availability

of state remedies.”).

(2) File a record with this Court demonstrating that Petitioner has completed a

full round of state post-conviction review. To do this, Petitioner must file

with the Court (a) an order from a New York trial court denying Petitioner’s §

440 application (such as Justice Corrigan’s September 16, 2021 decision), and

(b) an order from the Appellate Division denying Petitioner leave to appeal

the trial court’s order.

If such documents exist, Petitioner shall file them with the Court and may, if

he wishes, also submit an explanatory letter, not to exceed one page. If within 30

days of this order the Court does not receive anything from Petitioner, or it receives

documents from Petitioner that are insufficient to cure the defect described in this

opinion, the Court will direct the Clerk of Court to close this case.

SO ORDERED.

/s/ NRM

NINA R. MORRISON

United States District Judge

Dated: May 6, 2022

Brooklyn, New York