Sabino v. Port Authority Police Department

Background

Saul Sabino, who the order says was detained at the Anna M. Kross Center on Rikers Island, filed a notice seeking to remove his criminal proceeding, People v. Sabino, Case No. 01504-2020, from New York Supreme Court, New York County. That removed proceeding was opened as a separate federal action, No. 22-CV-5025 (LTS), and had already been sent back to state court.

The notice was approximately 800 pages long. It referred to 28 U.S.C. § 2241 and appeared to challenge Sabino’s custody based in part on alleged violations of the constitutional protection against being prosecuted twice for the same offense and the right to a speedy trial. Because the filing appeared to seek relief under Section 2241, the court directed that this separate action be opened as a possible federal custody petition.

Court’s Analysis

Section 2241 allows a person in custody to seek relief when the custody allegedly violates the Constitution or federal law. The court explained that this procedure is generally available to a state pretrial detainee challenging the legality of the detention. The court also noted that such a petition cannot be used to prematurely interfere with a pending state proceeding and that, under court decisions, a state pretrial detainee generally must first exhaust available state-court remedies.

Before treating a filing made under another procedure as a Section 2241 petition, the court said it must notify the petitioner and give him an opportunity to withdraw the filing. The court therefore directed Sabino to notify the court in writing within 30 days whether he wanted to withdraw the application, identified as ECF 2, rather than have it treated as a Section 2241 petition.

Disposition

The court did not immediately dismiss the action. Sabino’s written response had to be submitted to the court’s Pro Se Intake Unit within 30 days of the order and had to include docket number 22-CV-6229 (LTS). The court stated that, if Sabino did not want the application treated as a Section 2241 petition, or did not respond within 30 days or request an extension, it would dismiss the action without prejudice, meaning the dismissal would not bar refiling.

The court also stated that a certificate of appealability would not issue because Sabino had not then made a substantial showing that a constitutional right had been denied. It further certified that an appeal would not be taken in good faith and denied permission to proceed without paying the filing fee for purposes of an appeal.