Guerriero v. Montagari

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Todd Guerriero,

Petitioner, MEMORANDUM & ORDER

23-CV-01285 (DG)

-against-

A. Montagari,

Respondent.

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DIANE GUJARATI, United States District Judge:

By Petition filed February 17, 2023, pro se Petitioner Todd Guerriero, then incarcerated

at Mohawk Correctional Facility, commenced this action pursuant to 28 U.S.C. § 2254. See

generally Petition (“Pet.”), ECF No. 1.1 Petitioner challenges certain convictions in New York

State Supreme Court, Richmond County (the “Richmond County Supreme Court”).2

For the reasons set forth below, the Petition is dismissed without prejudice.

BACKGROUND

The Court liberally construes the Petition in light of Petitioner’s pro se status. See

1 Under the “prison mailbox rule,” the operative filing date is the date on which the Petition was

delivered to prison officials for forwarding to the Court. See Noble v. Kelly, 246 F.3d 93, 97-

98 (2d Cir. 2001). Here, Petitioner does not indicate the date on which he delivered the

Petition to prison officials. See generally Pet. The Petition was received by the Court on

February 17, 2023.

When citing to the Petition, the Court refers to the page numbers generated by the Court’s

electronic case filing system (“ECF”). The Court has not in all instances retained the Petition’s

original capitalization and/or formatting. Any alterations are non-substantive.

2 Although the Petition specifies the nature of the convictions Petitioner challenges, see Pet. at 4,

Petitioner does not indicate the dates of conviction. As set forth more fully below, it appears

that Petitioner challenges convictions sustained in November 2022, less than one year before

the filing of the Petition. See 28 U.S.C. § 2244(d)(1) (reflecting one-year period of limitation

applicable to a writ of habeas corpus by a person in custody pursuant to the judgment of a state

court).

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

In the Petition, Petitioner states: “The primary purpose of this petition is to establish that

Richmond Supreme Court committed and this case is the result of a federal crime by all parties

of the Court. Also to establish truth as the Constitution was written.” See Pet. at 4. Petitioner

asks for immediate release “and a federal investigation concerning the illegal action of

Richmond County Supreme Court,” see Pet. at 2; states that he “would like to press federal

charges on all judicial members who are involved in this horrendous, mali[ci]ous, and

unconstitutional act of terrorism,” see Pet. at 3; and asks “that Richmond County be made to

show just cause as to every aspect of this case such as arrest, indictment, sentence, and

conviction” and that “the federal court take legal & immediate action against the city and state in

full capacity of every federal rule & regulation governing the United States,” see Pet. at 2-3.

More specifically, Petitioner alleges, inter alia: that the Richmond County Supreme

Court “have illegally waived [Petitioner’s] constitutional right to the grand jury and has

unlawfully held [Petitioner] on a Superior Court Information in violation of C.P.L. 195.20(D)

Paragraph II which is a direct violation of the United States Constitution 5th & 14th

Amendment;” that “[his] lawyer of record violated all ethic codes including the 6th Amendment

that guar[a]ntees the people an effective assistance of counsel” and “[i]nstead he/she has

conspired with the District Attorney to violate all of [Petitioner’s] constitutional rights, and

infringing & circumventing due process of the law;” that the Richmond County Supreme Court

“has disregarded the Constitution, and intentionally denying the people equal protection of the

law;” that “[Petitioner] was never afforded a preliminary hearing;” that “[Petitioner’s] case was

never presented to a grand jury;” that the “District Attorney committed fraud in which

[Petitioner] never had a transcribed hearing in open court in regards to waiving [Petitioner’s]

constitutional right to a grand jury;” that the “District Attorney circumvented the United States

Constitution and federal laws whereby has no jurisdiction of case or person;” that “[Petitioner’s]

sentence is illegal due to coercion by attorney in allowing [Petitioner] to accept a plea under false

pretenses;” and that “[Petitioner] was denied equal protection of the law violation of 14th

Amendment.” See Pet. at 2-4.

Petitioner further alleges that he was “falsely convicted” of: “1) Burg – 3rd: Illegal Entry

with Intent PL 140.20 D Felony;” “2) Criminal Mischief 3: Property PL 145.05 02 E Felony;”

“3) Criminal Mis: Intent Damage Property PL 145.00 01 A Misdemeanor;” and “4) Petit Larceny

P.L 155.25 A Misdemeanor.” See Pet. at 4.

On March 1, 2023, Respondent filed a letter in response to the Petition. See ECF No. 4.

In the March 1, 2023 letter, Respondent states:

It is not entirely clear what judgments of conviction petitioner is challenging. If

petitioner is challenging his convictions in New York State Supreme Court,

Richmond County[] under Indictment Nos. 00154-2020, 00213-2020, and 00060-

21, the claims are all unexhausted. On August 9, 2022, under these indictments,

petitioner pleaded guilty to Attempted Burglary in the Third Degree (Penal Law

§§ 110/140.20), in return for a promised sentence of three consecutive

indeterminate prison terms of 1 ½ to 3 years. On November 17, 2022, the court

imposed the promised sentence. Petitioner has not perfected a direct appeal in

state court.

In addition to being unexhausted, petitioner’s claims that he was never afforded a

preliminary hearing, and his case was never presented to a Grand Jury are not

cognizable.

See ECF No. 4 at 1-2 (citation omitted).3

By Order dated March 3, 2023, the Court directed Petitioner to file a response to the

March 1, 2023 letter by April 3, 2023. See March 3, 2023 Order. Petitioner failed to do so. See

3 State court records reflect that Petitioner was sentenced on November 17, 2022 under

Indictment Numbers 00154-2020, 00213-2020, and 00060-2021.

generally docket. Notwithstanding Petitioner’s failure to file a response or to seek an extension

of the filing deadline, the Court sua sponte afforded Petitioner additional time to file a response.

Specifically, by Order dated May 10, 2023, the Court directed Petitioner to file a response to the

March 1, 2023 letter by June 9, 2023. See May 10, 2023 Order.

Petitioner thereafter filed a letter. See ECF No. 5 (received by the Court on June 20,

2023). In Petitioner’s letter, Petitioner does not explicitly identify which conviction(s) he

challenges but does reference a sentence of “4 ½ – 9 yrs.” See ECF No. 5 at 4 (also referring to

sentence as “3 consec[]utive sentences of 1 ½ – 3 yrs”). This sentence appears to align with the

sentence referenced by Respondent in the March 1, 2023 letter. See ECF No. 4 at 1. The Court

construes the Petition to be challenging the above-referenced convictions for which Petitioner

was sentenced in November 2022.

In Petitioner’s letter, Petitioner makes allegations regarding, inter alia, his counsel,

discovery, DNA, and bail. See generally ECF No. 5.

Neither the Petition nor Petitioner’s letter indicates that Petitioner took a direct appeal or

otherwise addresses the issue of exhaustion. See generally Pet; ECF No. 5.

In summary, through his filings, Petitioner appears to raise ineffective assistance of

counsel claims as well as claims under the Fifth and Fourteenth Amendments. See generally

Pet.; ECF No. 5.

DISCUSSION

I. Applicable Law

To determine whether a petitioner is entitled to a writ of habeas corpus, a district court

must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254(b)(1) provides: “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 it appears that – (A) the applicant has exhausted the remedies

available in the courts of the State; or (B)(i) there is an absence of available State corrective

process; or (ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.” 28 U.S.C. § 2254(c) provides: “An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State, within the meaning of this section, if he has the

right under the law of the State to raise, by any available procedure, the question presented.”

To comply with the exhaustion requirement, a habeas petitioner must “fairly present his

constitutional claim to the state courts, which he accomplishes by presenting the essential factual

and legal premises of his federal constitutional claim to the highest state court capable of

reviewing it.” See Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quotations omitted);

see also Picard v. Conner, 404 U.S. 270, 275-76 (1971); Aparicio v. Artuz, 269 F.3d 78, 89-90

(2d Cir. 2001); Daye v. Attorney General of the State of N.Y., 696 F.2d 186, 191-92 (2d Cir.

1982) (en banc); Williams v. Montagari, No. 22-CV-05849, 2023 WL 5510637, at *5 (E.D.N.Y.

Aug. 25, 2023).

Further, as the Supreme Court has stated: “[I]f state-court remedies are no longer

available because [a habeas petitioner] failed to comply with the deadline for seeking state-court

review or for taking an appeal, those remedies are technically exhausted but exhaustion in this

sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal

court. Instead, if the petitioner procedurally defaulted those claims, the [petitioner] generally is

barred from asserting those claims in a federal habeas proceeding.” See Woodford v. Ngo, 548

U.S. 81, 93 (2006) (citation omitted); see also Jackson, 763 F.3d at 133; Aparicio, 269 F.3d at

89-91; Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); Williams, 2023 WL 5510637, at

*5. “Federal courts may address the merits of a claim that was procedurally defaulted in state

court only upon a showing of cause for the default and prejudice to the petitioner.” See Bossett,

41 F.3d at 829; see also Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

When a petitioner files a “mixed petition” – one containing both exhausted and

unexhausted claims – a district court may proceed in one of four ways, depending on the

circumstances: (1) dismiss the petition without prejudice so that the petitioner may exhaust his

unexhausted claims; (2) stay the petition to allow the petitioner to return to state court and

exhaust his claims; (3) allow the petitioner to delete the unexhausted claims and proceed with

only his exhausted claims; or (4) deny the petition on the merits. See Grist v. Griffin, No. 13-

CV-05806, 2014 WL 347465, at *2 (E.D.N.Y. Jan. 30, 2014) (discussing circumstances under

which various options are available/appropriate); see also Rhines v. Weber, 544 U.S. 269, 277-78

(2005); Perez v. Miller, No. 20-CV-02864, 2021 WL 4502472, at *3 (E.D.N.Y. Sept. 30, 2021)

(citing 28 U.S.C. § 2254(b)(1)(A) & (b)(2) and Rhines, 544 U.S. at 277-78).

II. The Petition is Dismissed Without Prejudice

For the reasons set forth below, the Petition is dismissed without prejudice.

As an initial matter, Petitioner does not appear to have presented the substance of any of

his federal claims for review in state court – e.g., through post-conviction motion or direct appeal

– and appears instead to have proceeded directly to file a federal habeas petition.

Petitioner can still present his ineffective assistance of counsel claims in state court by

way of a motion brought pursuant to New York Criminal Procedure Law Section 440.10. See

N.Y. Crim. Proc. L. § 440.10(1) & (2).4 Those claims are not procedurally defaulted and are

4 New York Criminal Procedure Law § 440.10(2) provides in relevant part:

Notwithstanding the provisions of subdivision one, the court must deny a motion

unexhausted. See, e.g., Williams, 2023 WL 5510637, at *6 (stating that “[s]ince there is no time

limit to filing a motion under CPL § 440.10, Petitioner’s ineffective assistance of counsel claim

is not procedurally defaulted because he could still present it in state court” (quotation omitted)).

In contrast, because Petitioner could have brought his other claims in a direct appeal but failed to

take an appeal within the prescribed period (or ever), those claims are procedurally defaulted and

exhausted. See N.Y. Crim. Proc. L. §§ 440.10(2), 460.10, 460.30(1); see also Jackson, 763 F.3d

at 133; Aparicio, 269 F.3d at 89-91; Bossett, 41 F.3d at 828. Accordingly, the Petition is a mixed

petition.

As set forth above, when presented with a mixed petition, a district court has available to

it several options, depending on the circumstances. Under the particular circumstances here, the

Court has determined that the Petition should be dismissed without prejudice.

As an initial matter, Petitioner has not requested a stay of the Petition or attempted to

demonstrate good cause for his failure to exhaust and the record does not otherwise reflect good

cause for Petitioner’s failure to exhaust. See generally Pet; ECF No. 5; see also Rhines, 544 U.S.

at 277 (noting that “stay and abeyance should be available only in limited circumstances,” that

“stay and abeyance 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,” and that, moreover, “even if

to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of

the proceedings underlying the judgment to have permitted, upon appeal from such

judgment, adequate review of the ground or issue raised upon the motion, no such

appellate review or determination occurred owing to the defendant’s unjustifiable

failure to take or perfect an appeal during the prescribed period or to his or her

unjustifiable failure to raise such ground or issue upon an appeal actually perfected

by him or her unless the issue raised upon such motion is ineffective assistance of

counsel.

N.Y. Crim. Proc. L. § 440.10(2)(c). New York Criminal Procedure Law § 440.10(1) reflects

the absence of a filing deadline.

a petitioner had good cause for that failure, the district court would abuse its discretion if it were

to grant him a stay when his unexhausted claims are plainly meritless”); Grist, 2014 WL 347465,

at *2. Notably, even after Respondent raised the issue of exhaustion in Respondent’s March 1,

2023 letter, see ECF No. 4 at 1-2, Petitioner did not proffer any cause for his failure to exhaust,

see generally ECF No. 5.

In addition, Petitioner has not requested to delete his unexhausted claims and proceed

with only his exhausted claims and, in any event, deletion of the unexhausted claims would not

benefit Petitioner because all of the exhausted claims are procedurally defaulted and therefore do

not serve as a basis for granting relief. See generally Pet; ECF No. 5; see also Grist, 2014 WL

347465, at *2 (stating that the option of deletion of unexhausted claims is “available only if the

‘petitioner expressly and unequivocally acknowledged to the district court that he was

abandoning his unexhausted claims’ and those claims are not intertwined with his exhausted

claims” (quoting Grady v. LeFevre, 846 F.2d 862, 865 (2d Cir.1988))); Harris v. Lamanna, No.

17-CV-00080, 2020 WL 1332104, at *15 (E.D.N.Y. Mar. 23, 2020) (deleting unexhausted claim

and dismissing petition).5

Moreover, the Court is not able to conclusively determine on the record before the Court

that the unexhausted claims are meritless such that denial of the entire Petition would be

appropriate at this stage. See Grist, 2014 WL 347465, at *2 (stating that “the court may deny a

mixed petition on the merits if it determines that the unexhausted claims are meritless” and citing

28 U.S.C. § 2254(b)(2)).

Petitioner may present his unexhausted claims in state court, where he has the possibility

of obtaining relief. If he exhausts his presently unexhausted claims in state court and still seeks

5 Petitioner has not shown – or even attempted to show – cause for his procedural default.

federal habeas relief thereafter, he will be able to request such relief by filing a subsequent

habeas petition as long as he can demonstrate that either statutory or equitable tolling of

AEDPA’s one-year limitations period applies.6

Under the specific circumstances of this case – namely, that Petitioner has brought only

unexhausted or procedurally defaulted claims, that Petitioner has not sought a stay, and that there

is no indication in the record of good cause for Petitioner’s failure to exhaust his ineffective

assistance claims – the Court does not conclude that dismissal without prejudice “unreasonably

impair[s]” Petitioner’s ability to obtain federal relief. See Rhines, 544 U.S. at 278.7

The Petition is DISMISSED without prejudice.8

6 On the record before the Court – which does not indicate that any post-conviction motion was

filed by Petitioner – it seems unlikely that Petitioner would be able to demonstrate statutory

tolling. See 28 U.S.C. § 2244(d)(2) (providing that “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this

subsection”). Notably, the filing of a post-conviction motion after the limitations period has

expired would not toll the limitations period. See, e.g., Diaz v. Kelly, 515 F.3d 149, 152 (2d

Cir. 2008); Stauffer v. McGinnis, No. 03-CV-06510, 2008 WL 3835468, at *6 (W.D.N.Y. Aug.

13, 2008).

To qualify for equitable tolling, Petitioner would have to establish “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way

and prevented timely filing.” See Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011) (quoting

Holland v. Florida, 560 U.S. 631, 649 (2010)). On the record before the Court, the Court is

not able to determine the likelihood that Petitioner would be able to satisfy this standard –

although the Court notes that the United States Court of Appeals for the Second Circuit has

“clearly stated that the AEDPA limitations period will only be [equitably] tolled in ‘rare and

exceptional circumstance[s].’” See Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010)

(second alteration in original) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).

7 Notably, “[a] habeas petition filed in the district court after an initial habeas petition was

unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second

or successive petition.” See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).

8 Although the Court does not reach the merits of the procedurally defaulted claims, the Court

notes that Respondent persuasively argues that certain claims would not be cognizable on

federal habeas review even assuming, arguendo, that those claims were not procedurally

defaulted. See ECF No. 4 at 2.

CONCLUSION

For the reasons set forth above, the Petition, ECF No. 1, is DISMISSED without

prejudice.

The Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

Petitioner, however, has a right to seek a certificate of appealability from the United States Court

of Appeals for the Second Circuit. See 28 U.S.C. § 2253(c).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore denies in forma pauperis status for the purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to enter judgment, close this case, and mail a copy of this

Order to Petitioner.

SO ORDERED.

/s/ Diane Gujarati __

DIANE GUJARATI

United States District Judge

Dated: January 16, 2025

Brooklyn, New York