Fleming v. The Attorney General of the State of New York

Background

Robert Fleming, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 seeking immediate release from state custody because of the serious risk that COVID-19 posed to him. He is serving two consecutive terms of 25 years to life for Bronx County murder convictions. Fleming alleged that he had suffered a severe asthma attack, tested positive for COVID-19, had a heart attack followed by a diagnosis of degenerative heart disease, and had been HIV-positive for 40 years. He also alleged that he was housed in a congregate setting and double-bunked with another high-risk inmate at Five Points Correctional Facility.

Fleming originally styled his filing as a request for compassionate release under 18 U.S.C. § 3582(c)(1)(A). In an earlier round of this matter, the court construed the filing as a § 2254 petition because Fleming was in custody under a state-court judgment. Fleming later confirmed that he wanted to pursue relief under § 2254. The court had granted his request to proceed without paying the filing fee.

Exhaustion requirement

Before a federal court ordinarily may grant relief under § 2254, a state prisoner must give the state courts the first opportunity to address the federal claim. This is called exhaustion of state remedies. A claim must be fairly presented to the state courts, including both its factual and legal grounds.

The court explained that Fleming’s COVID-19-related claims were not based on the trial record and therefore could be raised through a state post-conviction motion or a state habeas petition, followed by the available appeals. Fleming did not allege that he had pursued those state procedures. He stated instead that he sent a request to the superintendent through the warden and received no response.

The court concluded that neither recognized exception to exhaustion appeared to apply. State-court collateral review was available, and Fleming had not shown that pursuing it would be futile. The court noted that New York courts had considered and granted similar requests for release related to pandemic conditions.

Order

The court did not decide the merits of whether Fleming should be released. It directed him to file, within 60 days, a declaration explaining why the petition should not be denied for failure to exhaust state remedies and requiring him to detail the steps he had taken in New York courts.

The court stated that if Fleming failed to comply and could not show good cause for the failure, it would deny the petition, without prejudice, as prematurely filed. No response from the state was required at that time. The court also stated that a certificate of appealability would not issue and denied filing-fee status for purposes of an appeal, certifying that an appeal would not be taken in good faith.