Acevedo v. Capra

Background

Nineteen prisoners filed a federal petition under 28 U.S.C. § 2254. Except for one, they were incarcerated at Sing Sing Correctional Facility. They alleged that their vulnerability to COVID-19, combined with prison conditions such as inadequate masking and the inability to maintain physical distance, made their confinement unconstitutional under the Eighth Amendment. They sought release, asserting that release was the only effective protection against the virus.

The prisoners did not challenge the validity of their convictions or the length of their sentences. They had first pursued relief in New York state court under Article 70 of the New York Civil Practice Law and Rules. A state judge declined to sign their proposed order to show cause. The prisoners did not perfect one notice of appeal and did not file a notice of appeal from the state judge’s later written order. They also did not seek review through the state procedure that the federal court concluded was available for challenging the refusal to grant an ex parte application.

The respondent moved to dismiss on two grounds: that the claims challenged conditions of confinement and therefore belonged under 42 U.S.C. § 1983 rather than habeas, and that the prisoners had failed to exhaust available state remedies as required by § 2254. Magistrate Judge Sarah Netburn recommended dismissal for failure to exhaust without deciding whether the claims could proceed in habeas. Both sides objected to portions of that recommendation.

Habeas and conditions of confinement

Judge McMahon concluded that the prisoners’ claims were conditions-of-confinement claims. Under the distinction discussed in the opinion, habeas generally addresses the legality or duration of custody, while § 1983 addresses unconstitutional conditions during otherwise lawful custody. The prisoners did not claim that their convictions were invalid or that they were imprisoned longer than their sentences allowed. Their allegations concerned exposure to COVID-19 and the prison’s ability to protect them.

The court rejected the argument that the requested remedy—release—determined the proper legal vehicle. It relied particularly on Second Circuit precedent holding that the nature of the claim, rather than the remedy requested, determines whether a case belongs in habeas or under § 1983. The court found the present case materially similar to that precedent because both involved alleged health-related conditions of confinement and assertions that only release could remedy the alleged violation.

Judge McMahon held that the prisoners could not proceed under § 2254. Because they were represented by counsel, the court concluded that dismissal without prejudice to repleading under the correct statute was more appropriate than treating the petition as a § 1983 complaint.

Alternative exhaustion ruling

The court also held that, assuming the claims could proceed under habeas, dismissal would still be required for failure to exhaust state remedies. It concluded that the prisoners had not given New York courts a proper opportunity to address their claims. They failed to pursue a direct appeal from the state judge’s written refusal to sign the order to show cause, and they did not seek the alternative appellate review procedure that the court found available if no direct appeal existed.

Judge McMahon rejected the prisoners’ argument that enforcing exhaustion would violate due process. The opinion stated that the state procedures were available and not unduly burdensome, and that the prisoners’ failure to use them prevented the federal court from considering the § 2254 petition.

Disposition

The opinion states that the petition should be dismissed for failure to state a cognizable claim under § 2254, without prejudice to repleading the allegations under the correct statute. In the alternative, if the action could proceed in habeas, it had to be dismissed for failure to exhaust state remedies. The court adopted the magistrate judge’s report and recommendation in part.