Opinion · Court of Appeals for the Second Circuit

Ramiro Pesina v. Sally B. Johnson, Superintendent, Orleans Correctional Facility

913 F.2d 53

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1990-09-14
Topic: commercial

stating 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” | stating 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” | To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims “to the highest court of the pertinent state.” | “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.” | a petitioner must also present Section 440.10 claims to the highest state court, even if the statutory time limit for petitioner to appeal the denial of a Section 440.10 motion has passed | "Until [petitioner] presents his claim to the highest state court – whether or not it seems likely that he will be held to be procedurally barred – he has not exhausted available state procedures." | "Until [petitioner] presents his claim to the highest state court – whether or not it seems likely that he will be held to be procedurally barred – he has not exhausted available state procedures." | "Until [petitioner] presents his claim to the highest state court – whether or not it seems likely that he will be held to be procedurally barred – he has not exhausted available state procedures."

Citator

Cited by: 36 opinions

PESINA v. JOHNSON,913 F.2d 53(2nd Cir. 1990)

RAMIRO PESINA, PETITIONER-APPELLANT, v. SALLY B. JOHNSON, SUPERINTENDENT,

ORLEANS CORRECTIONAL FACILITY, RESPONDENT-APPELLEE.

No. 164, Docket 90-2151.

United States Court of Appeals, Second Circuit.

Submitted September 14, 1990.

Decided September 14, 1990.

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, MartinPage 54A. Hotvet, Asst. Attys. Gen., Albany, N.Y., of counsel), for respondent-appellee.

Appeal from the United States District Court for the Western District of New York.

Before KAUFMAN, WINTER and MINER, Circuit Judges.

PER CURIAM:

[1] 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.

[2] Pesina pleaded guilty in County Court to first degree manslaughter, New York Penal Law § 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.

[3] Pesina next sought collateral relief in state court. He filed apro semotion in Niagara County Court to vacate his conviction pursuant to New York Criminal Procedure Law § 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. § 450.15.

[4] 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.

[5] The statute authorizing the issuance of writs of habeas corpus,28 U.S.C. § 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 § 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. Attorney General ofNew York,696 F.2d 186, 190 n. 3 (2d Cir. 1982) (en banc). Pesina, by failing to appeal the denial of his Section 440.10 motion, has not fulfilled this requirement with respect to his ineffective assistance claim.

[6] Pesina argues that because the statutory time limit for such an appeal has passed,seeN.Y.Crim.P.L. § 460.10(4)(a), he has exhausted his claim. We disagree. While that statutory limit may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 action. Until Pesina presents his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures.See28 U.S.C. § 2254(c).

[7] Accordingly, the judgment of the district court is affirmed.Page 55