Nunez v. Danforth

Background

Jose Nunez filed a petition under 28 U.S.C. § 2254 challenging his New York state-court conviction on four constitutional grounds. He later filed an amended petition adding a fifth constitutional ground. The opinion states that the conviction became final in September 2019 and that Nunez filed his petition in November 2020. The respondent’s response was not due until February 12, 2021.

Nunez moved for release from the Ogdensburg Correctional Facility on a personal-recognizance bond while the court considered his petition. He argued that he might receive a release date of June 21, 2021, might qualify for early release because of his health conditions, and faced COVID-19 risks because of hypertension and obesity. He submitted no medical documentation or health records with the motion. He also referred to state-imposed COVID-19 restrictions and claimed that he lacked the resources needed to meet the petition’s filing deadline.

Legal standard

The court explained that federal courts have limited authority to release a habeas petitioner on bail. The petitioner must show substantial claims and extraordinary circumstances making release necessary to preserve the effectiveness of the habeas remedy. The court also considers whether the petitioner has shown a likelihood of succeeding on the merits.

Court’s analysis

The court found that Nunez had not shown extraordinary circumstances requiring release. Regarding COVID-19, the court said he had not adequately established his medical condition or the conditions at the facility. The court also found that he had not shown a likelihood of success because his petition appeared to be filed after the one-year deadline in 28 U.S.C. § 2244(d). Although Nunez cited COVID-19 restrictions, the court said he did not explain what those restrictions were, when they began, how long they lasted, or what efforts he made to file on time. The court also stated that Nunez’s suggestion that federal courts had been closed for 90 days was factually incorrect because the Clerk’s office and Pro Se Intake Unit had remained open for filing during the pandemic.

The court considered whether Nunez’s motion could be understood as a request to amend his petition to add a claim about COVID-19-related conditions of confinement. The court noted that courts had disagreed about whether such claims belong in a petition under § 2254 or in a civil-rights lawsuit under 42 U.S.C. § 1983. Even assuming that habeas was the proper vehicle, the court found that amendment would be futile because Nunez had not exhausted the claim in state court. The court stated that exhaustion was required regardless of whether the claim proceeded under § 2254 or § 2241.

Disposition

The court denied Nunez’s motion without prejudice. To the extent the motion sought to amend the petition to add a COVID-19 conditions-of-confinement claim, the court denied that motion because Nunez had not exhausted state remedies. The opinion does not decide the ultimate merits of Nunez’s constitutional challenges to his conviction.