# Safran v. The People of the State of New York

> District Court, E.D. New York · May 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10309716

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309716. Public record. Not legal advice.