McVay v. Walker

Background

Jeffrey McVay was a pretrial detainee whose criminal case was pending in New York Supreme Court, New York County. The court received a petition originally prepared by Maurice Mayo on behalf of Mayo and 11 other detainees, including McVay. The court had previously separated McVay’s claims from the other detainees’ claims and opened this case. McVay proceeded without a lawyer, and the court had granted his application to proceed without paying the filing fee.

The petition was filed under 28 U.S.C. § 2254, a federal procedure generally used to challenge custody after a state conviction and sentence. McVay’s claims concerned his pretrial detention. He asserted that he was being held under a superior court information and that his constitutional right to a grand-jury indictment was violated when he waived indictment. He also asserted that his lawyer was conspiring with the District Attorney’s Office to deny him his rights.

The attached criminal-case docket showed an arrest on October 27, 2021, a “true bill” presented on November 1, 2021, a not-guilty plea on November 23, 2021, and a criminal case that remained pending. The opinion states that the public record did not show any motion filed in the state case challenging McVay’s waiver of indictment.

Court’s analysis

The court explained that a person in pretrial detention generally brings a federal habeas petition under 28 U.S.C. § 2241, not § 2254. Habeas relief is a procedure for challenging unlawful custody. The court therefore construed McVay’s application as a petition under § 2241.

The court also explained that a person seeking § 2241 relief generally must first exhaust available state-court remedies. Because McVay challenged an issue arising in his ongoing state criminal case, the court said he generally should raise that issue in the state proceeding first. The opinion notes that McVay had not alleged that he or his lawyer filed a motion challenging the waiver of indictment, and the publicly available record showed none had been filed. The court did not decide whether the federal court could ultimately intervene or whether McVay’s claims were legally valid.

Opportunity to withdraw and amend

Before changing the legal basis of the petition, the court gave McVay an opportunity to withdraw it. The conclusion gives him 30 days to notify the court whether he intends to withdraw. The opinion also states that a second § 2241 petition of this type might trigger restrictions on successive petitions.

The court granted McVay 60 days to file an amended petition. The amended filing must identify his grounds for relief, describe the steps taken to raise those grounds in the ongoing state proceedings and, when necessary, in the state appellate courts, and explain why he cannot exhaust those remedies if he is unable to do so. The amended petition will replace the original petition. If McVay does not comply within the allowed time and cannot show good cause, the petition will be denied.

Disposition

The court recharacterized the petition as arising under 28 U.S.C. § 2241, granted 60 days to amend, and provided 30 days to withdraw. It did not issue an order requiring the respondent to answer. It also ruled that a certificate of appealability would not issue and denied permission to proceed without paying the filing fee for an appeal. The order did not reach the merits of McVay’s challenge to his detention.