Sloane v. Superintendent Michael Daye

Background

Derek Sloane, who the opinion says is incarcerated at Fishkill Correctional Facility, filed a petition under 28 U.S.C. § 2254 challenging his February 15, 2022 conviction in Putnam County Court. A jury convicted him of third-degree grand larceny and third-degree criminal possession of stolen property. The New York Appellate Division, Second Department, affirmed the conviction on May 14, 2025, and leave to appeal was denied on July 10, 2025.

Sloane’s federal petition raised four grounds: ineffective assistance of trial counsel for not calling certain witnesses; denial of a jury of his peers after the only Black juror was removed; a statement that he was found guilty in less than half an hour by the only white jurors; and ineffective assistance for failing to obtain video footage that he believed would have helped his defense. The opinion also states that Sloane alleged his appellate counsel refused to raise his preferred issues, but did not assert ineffective assistance of appellate counsel as a separate ground. Sloane had not filed state post-conviction motions.

Exhaustion analysis

Before a federal court generally may review a state prisoner’s constitutional claims, the prisoner must give the state courts the first opportunity to consider those claims. This requirement is called exhaustion. The court explained that Sloane’s direct appeal raised different issues: the weight of the evidence, prosecutorial comments during closing argument, admission of evidence concerning a key, a ruling about prior criminal acts, and the trial court’s decision not to examine his competency. The Appellate Division also rejected unspecified remaining contentions as without merit.

The court therefore concluded that the claims in Sloane’s federal petition appeared not to have been exhausted. It further explained that his ineffective-assistance claims could generally be pursued through a motion under New York Criminal Procedure Law § 440.10, followed by an appeal for permission to the Appellate Division. Because that state remedy remained available, the court treated those claims as unexhausted rather than deciding their merits.

Order

The court granted Sloane leave to file an amended § 2254 petition within 60 days of the order. The amended petition must state each ground for relief and describe the steps taken to fully exhaust each ground in New York courts. It must replace the original petition, be captioned “Amended Petition,” and use the same docket number.

The court did not grant or deny the requested habeas relief on the merits. It directed that the amended petition be reviewed for substantive sufficiency. If Sloane fails to comply within the permitted time and cannot show good cause, the opinion states that the petition will be denied without prejudice as unexhausted.