Mayrant v. McCarthy

USDC SDNY | DOCUMENT ELECTRONICALLY FILED OF THE DISTRICT ATTORNEY, Bronx County | DOC #: | DATE FILED:__ 3/8/21 DARCEL D. CLARK 198 East 161st Street (718) 838-7095 District Attorney Bronx, New York 10451 Fax (718) 590-6523 March 5, 2021 Honorable Barbara Moses United States Magistrate Judge United States District Court Southern District of New York Mi EN 0 EN D ORS FD Daniel Patrick Moynihan Courthouse Pearl Street, Courtroom 20A New York, New York 10007-1581 RE: Mayrant v. Keyser, 20 Civ. 09324 (GBD)(BCM) Dear Judge Moses: My Office represents the Respondent in the above-entitled proceeding, and pursuant to our Order dated January 19, 2021, our response to Petitioner’s pro se habeas corpus petition 1s currently due March 19, 2021. I am writing to join petitioner’s request that this Court stay the In his petition, Petitioner argues, inter alia, that because the criminal court complaint used to commence his prosecution was “jurisdictionally defective,” the state court “lack[ed] . . . trial jurisdiction.” See Pet., p.4. He also acknowledges that he initially raised this claim in a CPL § 440.10 motion, which is currently pending in state court and “request[s] . . . a stay and abeyance” to exhaust this claim. See Pet., p. 3-4; see also Exhibit 1, CPL § 440.10 motion. Because petitioner’s claim is unexhausted (see 28 U.S.C § 2254][b][1]), Respondent joins in this request.

“As a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the states court have had an opportunity to act.” Rose v. Lundy, 455 U.S. 509, 515 (1982), citing Ex parte Royall, 117 U.S. 241, 251 (1886); see also Younger v. Harris, 401 U.S. 37, 43-45, (1971); 28 USC 2254(b)(“an application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”). Thus, “in the interests of comity and federalism . . . state courts must have the first opportunity to decide a petitioner’s claims,” (Rhines v. Weber, 544 U.S. 269, 273 [2005]), otherwise, a petition that contains both exhausted and unexhausted claims fails to meet the total exhaustion requirement imposed upon writs of habeas corpus and must be dismissed. Rose v. Lundy, 455 U.S.at 510, 522.

Accordingly, Respondent requests this Court stay the proceedings, including the filing of the undersigned’s response, until 45 days after Petitioner exhausts his claim in state court. In doing so, however, Respondent makes no concessions regarding the merits of any of petitioner’s arguments and does not comment on any facts or allegations petitioner raises in his motion.

Moreover, determing whether such a stay is appropriate is within this Court’s discretion. Rhines v. Weber, 544 U.S. at 277 (2005).

Respectfully, cc: Raymond Mayrant that x. Cakeon 16-A-0232 ynthia A. Carlson Sullivan Correctional Facility Bronx County District Attorney P.O. Box 700 Assistant District Attorney Fallsburg, New York 12733 198 East 161st Street Bronx, New York 10451 [email protected] Application GRANTED. This action is STAYED and held in abeyance until 45 days after a decision is issu in state court on petitioner's CPL § 440.10 motion. Petitioner is directed to notify the Court within ten □□□□ receiving a decision on his motion. Failure to timely notify this Court and request that the Court lift the st: may result in dismissal for failure to prosecute.

The Clerk of Court is respectfully directed to mail a copy of this Order to the pro se petitioner.

SO ORDERED.

Barbara Moses, U.S.M.J.

March 8, 2021 EXHIBIT 1, Petitioner’s CPL § 440.10 motion SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF: “Syn XY THE PEOPLE OF THE STATE OF NEWYORK, NOTICE OF MOTION TO Respondent(s) VACATE JUDGMENT - against - 7 C.P.L. §440.10 Aron tah Gal cendls Defendant(s).

PLEASE TAKE NOTICE that upon the annexed affidavit of 7 Eo Ueupenf sworn to on the of tg , 20. 2A (and documents attached thereto) and upon the accusatory instrument and all other papers filed and proceedings herein, defendant will move this Court, at the Courthouse located at Lt 6 ao Eas fe 6, □□ Do a a Me O75) on the aay of □□□ __,202@ at 10:00 a.m., or as soon thereafter as counsel may be heard, for: An order, pursuant to Criminal Procedure Law §440.10(L- 7 x ), vacating the judgment entered against the above-named defendant on the // ie of Jo Muss, 20/6, on the following grounds. w L0legel arrest C466 Fenf (b) Hanh ae, 2 2p va Hee ele I erence recente a age ane ance acsearle An order, An order, pursuant to Crim. Proc. Law §440.30(S), to produce the defendant at any hearing conducted to determine this motion; and Such other and further relief as the Court may deem just and proper.

Ode, at New 7 Yours 4 LL Be j <f- cca = ka eae ez oP =e ee i SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF: 4 ) Kk a cae Ucar aclaie THE PEOPLE OF THE STATE OF NEW YORK, Respondent(s) AFFIDAVIT IN SUPPORT OF MOTION TO VACATE THE -against- JUDGMENT C.P.L. §440.10 be — j L. pomenl Hoe Ind.No. SAS AKAD Defendant(s). ier elec eee ote perc reed eee eeninese ttre STATE OF NEW YORK _ ) )ss.: COUNTY OF SULLIVAN |) ; LPC. Z Ne wont as "2.0: 7’ being, duly sworn, deposes and says: 1. I am the defendant in the above-entitled proceeding. | make this affidavit in support of a motion, pursuant to section 440.10, subdivision / / a / , to vacate the judgment of conviction herein, upon the grounds that: ’ ; 4 @ £46 fe J Be ee 4 rent fect! ef Xr.2 Sunitd: Aen □□ cay acta ee 2. I was, indicted for: ’ = pe wf (a) Lut ae Leb LOE shee eee © A thenyatod parse a Lb beat! alerrne (c) Letina L pLOLL Mp PR. a 4. □□□ flee 3. At arraignment I entered a plea of “not guilty” and posted bail in the, amount of f . □□ $ ————— _.. I was, tried in this court before Hon. thle ren ct Magn the day orersueronm—n! fo ih f tAbvtrndel” a/R The case was, submittedto VW C4 ___ ; 4. tn ore aLlaMt ors, centered 2S peette oF Cert C 0H LEC ES □□□ ty 5. The evidence adduced at my trial] may be, summarized as follows: Ze. CL 2 7 ; 6.

7. [If applicable, include:] Among the evidence gathered by the State in its investigation of the crime and admitted at my trial [or] but not admitted at my trial was LL a 4 is relevant to proof of guilt in that cence i LEE _. My conviction occurred prior to January 1, 1996, to wit, ON 9, LU, 8. The ground(s) for relief raised upon this motion has (have) not previously been determined on the merits upon a prior motion or proceeding in a court of this state, or upon a appeal from the judgment, or upon a prior motion or proceeding in a federal court.

9. WHEREFORE, | respectfully request that my conviction be vacated on the a r fy “th fe @iunké perbonad M&K □□□ □ thar Liga ihe sa HZ ex JD , and that this Court grant such other and further relief as it may deem just and proper [or if applicable]; 10. WHEREFORE, | respectfully request an Order of this Court pursuant to N.Y. Crim.

Proc. Law a YQ fi a and granting such other and further relief as the Court may deem just and proper. fle te Ff Dated: /““¥ & 2020 ee Défendant, Pro-se Sworn to before me this □ lat □ —— Pt.

~ NOFARY PUBLIC RICHARD P: WISSLER Rotary Public, State of New Yorks No. 01W16397622 Qualified in Orange County My Commiesion Expires on September 9, 2023 AFFIDAVIT OF SERVICE STATE OF NEW YORK __) ) ss.: COUNTY OF SULLIVAN ) seat! aah I, Oo YPYOPIL 4.4 err 7. being duly sworn, deposes and says: lam the ax OKLA AS G72 4 in the enclosed action.

I have on this-Z j day of a Y . 20_22%. placed and submitted within the institutional mailbox located at Sullivan Correctional Facility, P.O. Box 116, 325 Riverside Drive, Fallsburg, NY 12733 the following: Lek 89a. ty ore to be duly mailed and delivered via the United States Postal Service upon the following party|s]: Sysrepe Corfe f LE Char Cau Clee he fice neem Lai tft Set □□ COS fEl "SIE Seth FE. □□□□□ PP eset My Lops / peerage gesting easiest Maat, Abe tpor he □□□ Respectfully submitted, Ale [Signature] LL A, \ | ap [Print Name] _— 4%*& et bigs A PP, \ read Sullivan Correctional Facilfty P.O. Box 116 Fallsburg, N.Y. 12733-0116 Sworn to before me this tdayof_ Atay .202° NOTARY PUBLIC CHRISTOPHER E BARRETO NOTARY PUBLIC, STATE OF NEW YORK Registration No. 01BA6382056 Qualified in Orange County My Commission Expires October 15, 2022 Ground One: The felony complaint that was used to commence a criminal action against me is jurisdictionally defective because it never established reasonable cause which is the equivalent of probable cause the constitutional prerequisite for a lawful arrest. C.P.L. 120.20. I say this because in my felony complaint which is based-on information and belief failed to establish the witnesses bases of knowledge of information and the grounds of belief. There was nothing said in my felony complaint stating the witnesses observed me the defendant committing any criminal act and nothing was stated that the witness identified me as the suspect. The basis of knowledge and reliability of the witnesses was never shown. Therefore, reasonable cause was never established. Which is a violation of the United States Constitution Fourth Amendment because it states in essentially identical wording: The right of the people to be secured in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated. And no warrants shall issue- but upon probable cause, supported by oath of affirmation and particularly describing the place to be searched, and the person or things to be seized.”

Reasonable cause must be demonstrated on the face of an accusatory instrument in order to confer jurisdiction of the criminal action and control over the liberty of an accused person which is a United States Constitutional requirement which was never established in my felony complaint. See Fitzpatrick v. Rosenthal, 809 N.Y.S. 2d 729.

See also, Giordennello v. US, 357 U.S. 480 (1958).

In this case, //linois v. Gates, 462 U.S. 213 (1983), where a petition for certiorari filed by the State seeking review of a decision of the Illinois Supreme Court, 85 Ill. 2d 376, 53 Ill. Dec. 218. 423 N.E. 2d 887, which affirmed decision of lower state court, 82 Ill. App. 3d 749, 38 Ill. Dec. 62, 403, N.E. 2d 77, which upheld order granting motion suppressing evidence seized pursuant to a search warrant. The Supreme Court Justice Rehnquist, held that: (1) rigid two-pronged test under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant would be abandoned and a totality of the circumstances approach that traditionally has informed probable cause determinations would be substituted in its place.

But at the same time in section *230 agrees with the Illinois Supreme Court that an informant’s “veracity, reliability, and bases of knowledge are all highly relevant in determining the value of his report. Then it goes on to say in section *233 that there are persuasive arguments against according ¥ these two elements such independent status. Instead they are better understood as relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations. A deficiency in one may be compensated, for in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

In my felony complaint which I attached to this motion, marked as Exhibit “A,” did not set forth neither the basis of knowledge or the reliability prong because my felony complaint which states the grounds for the deponent’s belief are as follow: deponent states based upon official investigation which it never explains what the investigation revealed and then it says witnesses known to the police department in which no information was furnished to the court concerning whether the witnesses accounts came from an anonymous or a paid informant, in which event an independent showing of reliability would have been required, or whether those accounts came from an identified citizen informant; in which event there would be no need to furnish further evidence of reliability. In the case of Giordenllo v. US., 357 U.S. 480 (1958), states the language of the Fourth Amendment, that no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the persons or things to be seized ***, of course applies to *486 arrest as well as search warrants. Therefore, a warrant for my arrest should never have been issued as result of my felony complaint which never established probable cause. Also see State v. Chaplin, 191 Vt. 583 (2013).

Ground Two: My Fifth Amendment due process clause of the United states Constitution was violated because the court lacked jurisdiction over me at the time of my trial and having jurisdiction means that the court has the power to hear my case which it did not because my felony complaint which was used to commence a criminal action against me is jurisdictionally defective because it did not establish reasonable cause. I say this because my felony complaint which was based upon information and belief, never established the witness’s sources of information and the grounds of belief. There was nothing stated in my felony complaint that the witness observed me the defendant committing any criminal act and nothing was stated that the witnesses identified me as the suspect. The basis of knowledge and reliability of the witnesses was never shown. Which is a United States constitutional right that reasonable cause must be demonstrated on the face of the felony compliant in order for the court to confer jurisdiction of the criminal action and control over the liberty of an accused person. Therefore, the court lacked jurisdiction to hold a trial let alone, convict me. See Butler v. King, 781 F. 2d 486, 490 (5" Cir. 1986); Lowey v. Estelle, 696 F. 2d 333, 336-38 (5" Cir. 1983).

Respectfully on □□□ 74, Raymond Mayrant 16-A-0232 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Mayrant (List the name(s) of the plaintiff(s)/petitioner(s).) 20 Civ. 09324 ( GBD) (BCM) - against - AFFIRMATION OF SERVICE Keyser (List the name(s) of the defendant(s)/respondent(s).)

I, @rint your name) Cynthia A. Carlson , declare under penalty of perjury that I served a copy of the attached (list the names of the documents you served): Letter motion joining stay application upon all other parties in this case by (state how you served the documents, for example, hand delivery, mail, overnight express) Mail to the following persons (list the names and addresses of the people you served): Raymond Mayrant, 16-A-0232 Sullivan Correctional Facility, P.O. Box 700, Fallsburg, New York 12733 on (date you served the document(s)) March 5, 2021 .

March 5, 2021 ( chin A. Carleen Dated ignature East 161st Street Address Bronx, New York Citys State 10451 Zi (I 8) 838-7095 Telephone Number [email protected] E-Mail Address Rev. 01/2013