Wesley-Rosa v. Kaplan

• Decision Date: 11 August 2017
• Docket Number: 17–cv–1127 (ENV)
• Citation: 274 F.Supp.3d 126
• Parties: Jacqueline WESLEY–ROSA, Petitioner, v. Sabina KAPLAN, Respondent.
• Court: U.S. District Court — Eastern District of New York

274 F.Supp.3d 126

Jacqueline WESLEY–ROSA, Petitioner,

v.Sabina KAPLAN, Respondent.

17–cv–1127 (ENV)

United States District Court, E.D. New York.

Signed August 11, 2017

Jacqueline Wesley–Rosa, Bedford Hills, NY, pro se.

Thomas M. Ross, Kings County District Attorney, Brooklyn, NY, for Respondent.

MEMORANDUM & ORDER

VITALIANO, D.J.

Pro se petitioner Jacqueline Wesley–Rosa brought this action on February 27, 2017, seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1). Before the Court now are petitioner's (1) a motion to appoint counsel and (2) a motion for stay and abeyance. (Mot. to Appoint Counsel, ECF No. 5; Mot. to Stay, ECF No. 4). For the following reasons, petitioner's motion for stay and abeyance is denied, Wesley–Rosa's petition is dismissed without prejudice and her motion to appoint counsel is denied as moot.

Background

Following a jury trial in the summer of 2012, Wesley–Rosa was convicted in Kings County Supreme Court of second-degree murder and sentenced to a term of imprisonment of 25–years to life. (Opposition 2, ECF No. 7). On December 16, 2015, the Second Department affirmed her conviction. People v. Wesley ("Wesley I "), 134 A.D.3d 964, 21 N.Y.S.3d 345 (2d Dep't 2015). The New York Court of Appeals denied petitioner leave to appeal on February 29, 2016. People v. Wesley ("Wesley II "), 26 N.Y.3d 1151, 51 N.E.3d 576, 32 N.Y.S.3d 65 (2016). She then moved pro se , by letter dated May 19, 2016, for reconsideration in the Court of Appeals. (Opposition 4). The Court of Appeals denied that motion on July 27, 2016. People v. Wesley ("Wesley III "), 27 N.Y.3d 1157, 62 N.E.3d 130, 39 N.Y.S.3d 390 (2016).

While her motion for reconsideration was still pending, Wesley–Rosa also filed, on May 30, 2016, a petition for a writ of certiorari and a motion to proceed in forma pauperis ("IFP") in the Supreme Court of the United States. (Opposition 17). On October 3, 2016, the Supreme Court denied petitioner's motion to proceed IFP, but granted her leave, until October 24, 2016, to pay the docketing fee and to submit a petition that complied with the Supreme Court's booklet-formatting rules. See (id. ); Wesley–Rosa v. New York , ––– U.S. ––––, 137 S.Ct. 271, 196 L.Ed.2d 19 (2016) ; Sup. Ct. R. 33.1 & 38(a). That deadline was subsequently extended to December 23, 2016. (Opposition 17). On December 23, Wesley–Rosa filed a motion for an additional extension of that deadline, which was denied by the Supreme Court on January 6, 2017. (Id. ). Petitioner's case before the Supreme Court was "considered closed" by that Court on March 9, 2017. (Id. ).

As her Supreme Court litigation lumbered along, on February 22, 2017, Wesley–Rosa commenced the instant action. (Petition). Her petition raises four claims for relief: (1) denial of her right to a fair trial on the basis, in part, that the "[t]rial was based on a dismissed misdemeanor"; (2) ineffective assistance of trial counsel, based, in part, on counsel's failure to investigate witnesses; (3) manipulation of evidence by the prosecutors, specifically, the presentation of photos of purported exit wounds as depictions of entrance wounds ; and (4) prosecutorial misconduct, based, in part, on witness coercion and false opening and closing statements. (Id. at 5–6, 8–9).

On April 27, 2017, petitioner filed the motions sub judice for the appointment of counsel and for stay and abeyance so that she might return to state court to exhaust her arguably unexhausted claims. (Mot. to Appoint Counsel; Mot. to Stay). Respondent filed an opposition to the motion for stay and abeyance on May 9, 2017. (Opposition). On June 6, 2017, petitioner filed a reply. (Reply, ECF No. 8).

Discussion

There is no disagreement between the parties that at least some of petitioner's claims are unexhausted. See (Mot. for Stay 3; Opposition 9). When confronted with a mixed petition, that is, one raising some unexhausted claims with those that are exhausted, a "Court may: (1) dismiss the petition in its entirety without prejudice; (2) deny the entire petition on the merits; (3) allow the petitioner to delete the unexhausted claims and proceed with his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his unexhausted claims." Francois v. Warden of Sullivan Corr. Facility , No. 12-CV-5333 (RRM), 2014 WL 1153920, at *4 (E.D.N.Y. Mar. 19, 2014). Because Wesley–Rosa has requested stay and abeyance, the Court will evaluate that option first.

It is well-understood, certainly, that a motion for stay and abeyance of habeas proceedings is addressed to the sound discretion of the district court. See Rhines v. Weber , 544 U.S. 269, 276, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005) (citing Landis v. N. Am. Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936) & Clinton v. Jones , 520 U.S. 681, 706, 117 S.Ct. 1636, 1650–51, 137 L.Ed.2d 945 (1997) ). Even when viewed through the prism of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), that legal sea change did not deprive district courts of their discretion to stay proceedings, but it did circumscribe it. See id. Under AEDPA, "stay and abeyance" of habeas proceedings is appropriate only if (1) the unexhausted claims are not "plainly meritless" and (2) "there [is] good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277, 125 S.Ct. 1528, 1534. Additionally, stay and abeyance will not be granted if there is any indication that the "petitioner engaged in intentionally dilatory litigation tactics." Allen v. New York , No. 13-CV-0991-JJM, 2016 WL 5928817, at *4 (W.D.N.Y. Oct. 12, 2016).

It is fair to conclude, on this record, that each of petitioner's four claims might succumb, at least in part, to exhaustion challenges. See (Opposition 9). Prescriptively, though, at this juncture, it cannot be concluded that, to the extent that there are unexhausted claims, those claims are "plainly meritless." Rhines , 544 U.S. at 277, 125 S.Ct. 1528 ; see Devaughn v. Graham , No. 14-cv-2322, 2014 WL 1653277, at *1 (E.D.N.Y. Apr. 24, 2014) (granting stay and abeyance where the court could not conclude "[o]n the face of the petition ... that Petitioner's" unexhausted claim was "without merit"); Schouenborg v. Superintendent, Auburn Corr. Facility , No. 08-CV-2865, 2013 WL 5502832, at *8–9 (E.D.N.Y. Sept. 30, 2013) (granting stay and abeyance so that petitioner could exhaust his "potentially meritorious" unexhausted claim).

Yet, and more significantly, no matter how deep into the self-proclaimed hardship barrel she gets in an attempt to scrape together a claim, petitioner has manifestly failed to make a showing of circumstances that satisfy the "good cause" requirement. Wesley–Rosa points to (1) her pro se status as an inmate in a maximum security prison; (2) the fact that the process for gaining access to the law library is time consuming; and (3) her obligation to attend mandatory programs in prison, cumulatively, as good cause for her failure to exhaust prior to filing her habeas petition. (Mot. to Stay 3). None of these ordinary badges of incarceration qualifies as good cause sufficient to merit a stay. See Allen , 2016 WL 5928817, at *5 ("Basing a finding of good cause upon pro se status would render stay-and-abeyance orders routine and thus run afoul of Rhines and its instruction that district courts should only stay mixed petitions in limited circumstances." (alterations, citation and internal quotation marks omitted)); Brown v. Bradt , No. 11-CV-972 (GLS/CFH), 2013 WL 1636070, at *12 (N.D.N.Y. Mar. 25, 2013) (noting that "an inmate's ‘lack of access to a law library does not constitute good cause pursuant to Rhines ’ " (quoting Berry v. Jacquez , No. 10-CV-0305, 2011 WL 4738336, at *5 (E.D. Cal. Oct. 5, 2011) )), adopted , 2013 WL 1628726 (Apr. 16, 2013). Consequently, because Wesley–Rosa has not demonstrated good cause for her failure to exhaust her claims prior to filing this action, her motion for stay and abeyance is denied.

Having declined to stay proceedings on this mixed petition, the Court is presented with only three viable alternate courses of action. See Francois , 2014 WL 1153920, at *4. As previewed earlier, it cannot be said, at this stage, that petitioner's claims are plainly meritless. Consideration of the option of outright, final dismissal under such circumstances would be premature and inappropriate. See id. As a result, only two options remain: to dismiss the petition in its entirety without prejudice or to allow Wesley–Rosa to delete the unexhausted claims and proceed with her exhausted ones. See id. In this litigation posture, a court "should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief." Rhines , 544 U.S. at 278, 125 S.Ct. 1528. Whether the opportunity to seek vindication of federal habeas rights is unreasonably impaired is principally informed by whether AEDPA's one-year statute of limitations has already expired or will do so shortly. See Francois , 2014 WL 1153920, at *4.

With respect to a § 2254 petition, the one-year statute of limitations begins to run "from the latest of" four specific milestone dates. See 28 U.S.C. § 2244(d)(1). In specific focus here is "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). The text of § 2244(d)(1)(A) consists of two branches covering different classes of petitioners. See Gonzalez v. Thaler , 565 U.S. 134, 150, 132 S.Ct. 641, 653, 181 L.Ed.2d 619 (2012). For those "who pursue direct review all the way to [the Supreme] Court, the judgment becomes final ... when [that] Court affirms a conviction on the merits or denies a petition for certiorari." Id. "For all other petitioners, the judgment becomes final at the ‘expiration of time for...