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

Background

Robert Fleming, who was incarcerated at Five Points Correctional Facility, filed a petition under 28 U.S.C. § 2254, the federal law allowing a person held under a state-court judgment to challenge that custody on federal constitutional or federal-law grounds. He sought release because of the serious risk of harm from contracting COVID-19. He was serving two consecutive sentences of 25 years to life based on his 2013 Bronx County murder convictions.

Fleming originally filed the matter as a request for compassionate release under 18 U.S.C. § 3582(c)(1)(A). In an earlier related proceeding, the court construed the request as a § 2254 habeas petition and opened this separate case. The opinion also notes that Fleming had another pending § 2254 petition challenging his murder convictions.

Exhaustion issue

Before a federal court generally considers a § 2254 petition, the petitioner must exhaust available state-court remedies by presenting the relevant claims to the state courts. The court had directed Fleming to explain why the petition should not be denied without prejudice for failure to exhaust. Fleming submitted a 31-page handwritten declaration, but the court could not identify factual allegations showing that he had exhausted state remedies for his COVID-related claims.

The court said it was unclear whether Fleming’s discussion of state proceedings from 2008 through 2017 was intended to show exhaustion of claims about his underlying conviction. The court’s earlier order had specifically required him to show that he presented his COVID-related claims through a state post-conviction motion, such as a motion under New York Criminal Procedure Law § 440.10, or through a state habeas petition.

Fleming appeared to argue that exhaustion was unnecessary because he sought relief under the compassionate-release statute. The court rejected that argument, explaining that the statute did not apply to someone held under a state-court judgment.

Fleming also attached a document addressed to the Supreme Court of the State of New York, Bronx County, seeking release or a stay of his judgment pending appeal because of COVID-19 concerns. But he alleged no facts showing that he had submitted the motion to the state court, that the state court had denied it, or that he had sought leave to appeal to the Appellate Division.

Ruling

The court concluded that Fleming had not shown cause why the petition should not be denied for failure to exhaust state remedies. It therefore denied the petition as premature and stated that, after fully exhausting his state remedies through the New York Court of Appeals, Fleming could file a habeas petition in federal court.

In the conclusion, Judge Laura Taylor Swain denied Fleming’s § 2254 application without prejudice. The court also ruled that no certificate of appealability would issue because the petition did not make a substantial showing that a constitutional right had been denied. Separately, the court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.