Phelps v. Superintendent, Gouverneur Corr. Facility
| Decision Date | 07 June 2021 |
| Docket Number | 20 Civ. 10352 (KPF) |
| Parties | DARRYL PHELPS, Petitioner, v. SUPERINTENDENT, Gouverneur Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Darryl Phelps ("Petitioner"), who is proceeding pro se and is currently incarcerated at Gouverneur Correctional Facility, filed a petition pursuant to 28 U.S.C. § 2254 to be released from incarceration due to the COVID-19 pandemic (the "Petition"). Thereafter, Petitioner raised several additional claims in unsolicited supplements to his Petition, including challenges to the denial of parole and to his underlying conviction. Respondent Superintendent of the Gouverneur Correctional Facility filed a motion to dismiss the Petition, arguing that (i) Petitioner failed to exhaust his state administrative and judicial remedies prior to filing the Petition; (ii) Petitioner's request for release due to COVID-19 is not a proper subject of a Section 2254 petition; and (iii) Petitioner's challenge to his conviction is untimely. In response to the motion, Petitioner requested a stay of the Petition so that he may have the opportunity to exhaust his state remedies. For the reasons set forth herein, the Court grants Respondent's motion to dismiss the Petition and denies Petitioner's motion to stay.
Petitioner pleaded guilty in 1998 in New York County Supreme Court to first degree burglary and attempted first degree rape. (Cieprisz Decl. ¶ 3). Petitioner's pro se motion to withdraw his guilty plea was denied, and Petitioner was sentenced as a mandatory persistent felony offender to concurrent indeterminate prison terms of 20 years' to life imprisonment on each count. (See Marinelli Aff. ¶ 4; Cieprisz Decl. ¶ 3; id. at Ex. 1). Petitioner's conviction was affirmed on appeal, with the Appellate Division agreeing with Petitioner's appellate counsel — who had filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and People v. Saunders, 384 N.Y.S.2d 161 (1st Dep't 1976) — that there were no non-frivolous issues to be raised on appeal, while simultaneously rejecting Petitioner's pro se claims regarding errors in his conviction and sentence. People v. Phelps, 724 N.Y.S.2d 602 (1st Dep't 2001). The New York Court of Appeals thereafter denied Petitioner leave to appeal and,on November 28, 2001, denied reconsideration of the denial of leave. People v. Phelps, 96 N.Y.2d 905, reconsideration denied, 97 N.Y.2d 657 (2001). Petitioner filed a motion challenging his 1998 conviction while his direct appeal was pending, but this motion was denied on July 26, 2000. (Cieprisz Decl. ¶ 8). Petitioner did not thereafter file any further challenges to this conviction until 2004. (Id.). Since then, Petitioner has continued his efforts to collaterally attack his conviction and sentence in state court, but all such efforts have been rejected. (See Marinelli Aff. ¶¶ 7-8).
On May 13, 2019, the New York State Board of Parole (the "Parole Board" or "Board") denied Petitioner parole after a review of his records and a personal interview. (Cieprisz Decl., Ex. 2). The Parole Board additionally imposed a hold of reconsideration for 24 months. (Id.). Petitioner filed an administrative appeal of the decision on October 7, 2019, which appeal the Parole Board's Appeals Unit rejected on February 24, 2020. (Id. at Ex. 3). The Appeals Unit found that the Parole Board had considered the requisite factors and that the Board's decision was supported by the record, and accordingly affirmed the Board's decision. (See id.).
Petitioner then filed a petition in the St. Lawrence County Supreme Court on March 19, 2020, challenging the Appeals Unit's decision pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"). (See Cieprisz Decl., Ex. 4). On July 29, 2020, the Supreme Court dismissed the petition without prejudice due to Petitioner's failure to properly serve the New YorkState Office of the Attorney General ("OAG") and the Parole Board. (See id.). Petitioner filed a new Article 78 petition in August 2020, again challenging the May 2019 parole denial. (Id. at Ex. 5; see also id. at Ex. 6). That petition remains pending. (Id. at ¶ 6).
Petitioner's most recent parole hearing was scheduled for May 18, 2021. (See Dkt. #27, 28). The record does not disclose whether the hearing occurred and, if so, what transpired during the hearing. The Court understands that Petitioner's next scheduled parole hearing is in November 2021.2
On December 8, 2020, the Court received from Petitioner a letter dated October 30, 2020, requesting release from incarceration on account of the threat to his health posed by COVID-19. (Dkt. #1). This letter was classified as a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and was assigned to this Court. Petitioner raised additional, unrelated claims in subsequent letters filed on December 28, 2020 (Dkt. #3), January 12, 2021 (Dkt. #5), January 14, 2021 (Dkt. #7-8), and February 4, 2021 (Dkt. #10).
On February 5, 2021, the Court granted Petitioner leave to proceed in forma pauperis. (Dkt. #12). The same day, the Court ordered Respondent to answer the Petition and Petitioner's supplemental filings to date within 60 days of the Order. (Dkt. #13). Respondent filed a motion to dismiss the Petition on April 6, 2021. (Dkt. #22-25).
The Court received additional letters from Petitioner on February 22 (Dkt. #16), March 26 (Dkt. #17), April 5 (Dkt. #21), April 7 (Dkt. #26), April 13 (Dkt. #27), April 15 (Dkt. #28), May 6 (Dkt. #32), May 13 (Dkt. #34), May 18 (Dkt. #35), May 20 (Dkt. #36), June 3 (Dkt. #37), and June 4, 2021 (Dkt. #38-39). On April 15, 2021, the Court ordered Respondent to respond to a letter in which Petitioner requested that his Petition be stayed pending exhaustion of his claims in state court. (Dkt. #28). Petitioner has reiterated his request for a stay in subsequent letters to the Court. (See Dkt. #32, 35). Respondent filed a letter in opposition to Petitioner's requested stay on May 6, 2021. (Dkt. #33).
The Court now resolves Respondent's motion to dismiss the Petition and Petitioner's request for a stay.
Petitioner's original filing, which is dated October 30, 2020, and was received by the Court on December 8, 2020, contains only a request for release from incarceration due to the risk posed by COVID-19 and his pre-existing health conditions. (See Dkt. #1). In subsequent letters, Petitioner recast this request as a claim under the Eighth Amendment for deliberate indifference to a serious risk of harm to Petitioner's health. (See Dkt. #3, 5, 10). Then, without seeking leave to amend his Petition, Petitioner filed a series of letters raising grievances regarding the validity of his 1998 guilty plea and conviction, the effectiveness of his trial and appellate counsel, the conditions of supervised release included in his sentence, and the Parole Board's May 2019 decision todeny him parole. (See, e.g., Dkt. #7, 8, 10). Petitioner's most recent letters have focused on his parole denial and ineffective assistance of counsel claims; they have not addressed his COVID-19 claim. (See, e.g., Dkt. #32, 35, 36).
Respondent raises three grounds for dismissal of the Petition, as de facto amended by Petitioner's supplemental filings: (i) Petitioner has not exhausted his state remedies on his Eighth Amendment and parole denial claims, and has not provided a valid excuse for failing to do so; (ii) Petitioner's Eighth Amendment claim is not cognizable under 28 U.S.C. § 2254 because it concerns the conditions of Petitioner's confinement rather than the validity or duration of his confinement; and (iii) Petitioner's challenge to his underlying state conviction is not properly presented to this Court and, in any event, is time-barred. (Resp. Br. 1). In response, Petitioner requested a stay of the Petition in order to allow him to exhaust his state remedies with respect to his challenges to his parole denial and to his underlying conviction. (See Dkt. #28). Petitioner does not express an intention to pursue his Eighth Amendment claim regarding COVID-19 in state administrative or judicial proceedings, nor does he address Respondent's second and third arguments for dismissal. (See id.).
A district court may consider an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court "onthe 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). However, such application may be granted only if it appears that "the applicant has exhausted the remedies available in the courts of the State[.]" 28 U.S.C. § 2254(b)(1)(A); Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (). Petitioner bears the burden of establishing exhaustion. See Colon v. Johnson, 19 F. Supp. 2d 112, 119-20 (S.D.N.Y. 1998) (citing United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442 (2d Cir. 1958), cert. denied, 358 U.S. 935 (1959)); accord Fudge v. Laclair, No. 13 Civ. 1370 (GTS) (TWD), 2017 WL 784785, at *5 (N.D.N.Y. Jan. 18, 2017); Vittor v. N.Y. State Dep't of Corr. and Cmty. Supervision, No. 13 Civ. 3112 (KAM), 2014 WL 1922835, at *2 .
In order to exhaust his state remedies, "the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim."...
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