1:20-cv-01103•Polansky v. NH, State of
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Christopher Polansky v. Case No. 20-cv-1103-JL State of New Hampshire REPORT AND RECOMMENDATION Petitioner, Christopher Polansky, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking release from the remaining conditions of his medical parole, which he asserts the New Hampshire Adult Parole Board (“APB”) “irresponsibly” extended from a planned termination date of December 2020 until 2023. The matter is before the court to determine whether the petition is facially valid and may proceed. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases (“§ 2254 Rules”); see also § 2254 Rule 1(b); LR 4.3(d)(4). Background Mr. Polansky was previously incarcerated at the New Hampshire Department of Corrections, but has been released on medical parole, pursuant to New Hampshire law. He presently resides in Texas but remains subject to restraints imposed upon him by the APB. He claims that the COVID-19 pandemic makes further compliance with the conditions of his medical parole Case 1:20-cv-01103-JL Document 4 Filed 03/15/21 Page 1 of 4
2 difficult or impossible, and that the APB’s recent decision to extend his medical parole until 2023 was “irresponsibl[e].” Setting aside the substantial questions of whether this court would have territorial jurisdiction, given Mr. Polansky’s residence in Texas; whether the petition should be recharacterized as a petition filed under 28 U.S.C § 2254; and whether the claims asserted by Mr. Polansky implicate a claimed violation of any federal right which could be adjudicated in a federal habeas petition under 28 U.S.C. § 2241 or 28 U.S.C § 2254, it is apparent that Mr. Polansky’s petition must be dismissed for lack of exhaustion. Inmates and parolees in state custody seeking release from custodial restraints must generally exhaust their state remedies, that is, litigate their federal claims completely at each available level of the state court system, before they can obtain relief. See Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010); McPherson v. Lamont, 457 F. Supp. 3d 67, 75 (D. Conn. 2020); Bancroft v. Massachusetts, 525 F. Supp. 2d 237, 241 (D. Mass. 2007); see also 28 U.S.C § 2254(b). Nothing before this court suggests that Mr. Polansky has previously filed a petition or complaint in any New Hampshire state court seeking judicial review of any pertinent decision of the APB, or that he has otherwise obtained a final judgment in the New Hampshire courts regarding the imposition of the challenged conditions or length of his parole. Accordingly, Case 1:20-cv-01103-JL Document 4 Filed 03/15/21 Page 2 of 4
3 the district judge should dismiss the Mr. Polansky’s habeas petition, without prejudice, for failure to exhaust. Certificate of Appealability Although a certificate of appealability (“COA”) is not essential when a habeas petitioner seeks relief under section 2241, the district judge should decline to issue a COA in this case. 1 A COA may issue “only if the [petitioner] has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When the district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, a COA should issue when the inmate shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484. Here, Mr. Polansky 1 See Gonzalez v. Justices of the Mun. Court, 382 F.3d 1, 12 (1st Cir. 2004) (“Where, as here, a habeas petition is governed by section 2241, a certificate of appealability is not essential.”), jt. vacated on other grounds by 544 U.S. 918 (2005), and reinstated, 420 F.3d 5 (1st Cir. 2005). But see Winburn v. Nagy, 956 F.3d 909, 912 (6th Cir. 2020) (“The circuit courts speak as one in their holdings that the language of § 2253(c)(1)(A) requires certificates of appealability for all state-prisoner habeas appeals, whether seeking pretrial relief under § 2241 or post-conviction relief under § 2254.”). Case 1:20-cv-01103-JL Document 4 Filed 03/15/21 Page 3 of 4
4 has not made a substantial showing of the denial of any constitutional right, and reasonable jurists would not debate that his failure to exhaust his state remedies bars further review of his claims at this time. Conclusion For the foregoing reasons, the district judge should dismiss Mr. Polansky’s petition without prejudice and decline to issue a certificate of appealability. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres- Centeno, 842 F.3d 163, 168 (1st Cir. 2016). __________________________ Andrea K. Johnstone United States Magistrate Judge March 15, 2021 cc: Christopher Polansky, pro se Case 1:20-cv-01103-JL Document 4 Filed 03/15/21 Page 4 of 4
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