Pesina v. Johnson

Decision Date14 September 1990
Docket NumberNo. 164,D,164
PartiesRamiro PESINA, Petitioner-Appellant, v. Sally B. JOHNSON, Superintendent, Orleans Correctional Facility, Respondent-Appellee. ocket 90-2151.
CourtU.S. Court of Appeals — Second Circuit

R. Nils Olsen, Jr., Buffalo, N.Y., for petitioner-appellant.

Peter H. Schiff, Deputy Sol. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen. of the State of New York, Nancy A. Spiegel, Martin A. Hotvet, Asst. Attys. Gen., Albany, N.Y., of counsel), for respondent-appellee.

Before KAUFMAN, WINTER and MINER, Circuit Judges.


Ramiro Pesina appeals from Judge Curtin's dismissal of his petition for a writ of habeas corpus for failure to exhaust state remedies. One of the federal claims underlying Pesina's petition was raised for the first time and denied in a state collateral action. We affirm because Pesina failed to seek leave to appeal from this denial to the state appellate courts.

Pesina pleaded guilty in County Court to first degree manslaughter, New York Penal Law Sec. 125.20, and was sentenced to a term of imprisonment of five to fifteen years. Pesina appealed his conviction to the New York Supreme Court Appellate Division claiming that his sentence was unlawfully severe. The Appellate Division affirmed, and leave to appeal to the New York Court of Appeals was denied.

Pesina next sought collateral relief in state court. He filed a pro se motion in Niagara County Court to vacate his conviction pursuant to New York Criminal Procedure Law Sec. 440.10 on the grounds that his sentence was excessive and that he was denied effective assistance of counsel. The County Judge denied the motion. Pesina did not seek leave to appeal to the Appellate Division as authorized by N.Y.Crim.P.L. Sec. 450.15.

Pesina then brought the instant action, again claiming cruel and unusual punishment and denial of effective assistance of counsel. The cruel and unusual punishment claim is conceded to have been exhausted. The district judge held, however, that the ineffective assistance claim had not been exhausted because Pesina did not appeal from the denial of his Section 440.10 motion. Finding therefore that Pesina's petition contained both exhausted and unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the court dismissed the petition in its entirety, see Pesina v. New York, No. CIV-87-1464C, slip op. at 4 (W.D.N.Y. Nov. 16, 1989). The district court thereafter granted Pesina a certificate of probable cause and permission to appeal.

The statute authorizing the issuance of writs of habeas corpus, 28 U.S.C. Sec. 2254, states in part that "[a]n application for a writ ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." Id. at Sec. 2254(b). We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition. See, e.g., Daye v....

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  • Brumfield v. Stinson
    • United States
    • U.S. District Court — Western District of New York
    • December 4, 2003
    ...of the factual and legal bases for the claim asserted." Diaz v. Mantello, 115 F.Supp.2d 411, 416 (S.D.N.Y.2000), citing Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990). As noted, Brumfield contends that his conviction should be vacated on six separate grounds. Discussion, supra, at p. 611.......
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    • January 15, 1993 278, 92 S.Ct. at 513. Exhaustion requires presenting federal claims to the highest court of the state. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990) (per curiam). "Adherence to exhaustion principles does not require a petitioner to raise his claims by citing chapter and verse of h......
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    ...8 L.Ed.2d 21 (1962). SO ORDERED. 1. Some courts observed a tension between the Second Circuit's decisions in Aparicio and Pesina v. Johnson, 913 F.2d 53 (2d Cir.1990). In Pesina, the Second Circuit declared that federal courts "have no authority to declare as a matter of state law that an a......
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    • September 26, 2000
    ...court from which a decision can be had, informing the court of the factual and legal bases for the claim asserted. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990); Daye, 696 F.2d at Respondent contends that petitioner failed to exhaust his claim that the trial court failed to conduct a......
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