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construing pro se application as seeking to amend petition and requesting a stay
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10 Civ. 5133 (CM)(KNF)
02-07-2011
JASON CORDOVA-DIAZ, Petitioner, v. WILLIAM D. BROWN, Respondent.
MEMORANDUM AND ORDER
BACKGROUND
On May 28, 2010 Jason Cordova-Diaz ("Cordova-Diaz"), acting pro se, made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted second-degree murder. Cordova-Diaz asserts the following claims in his petition: (1) "newly discovered evidence shows that Petitioner is innocent of the crimes and that the juror and judge lied"; (2) he "was denied due process when the prosecutor improperly crossexamined the al[i]bi witness and the juror's perfidy"; (3) "improper evidence of petitioner's past relationship with the victim as a drug dealer was admitted into trial"; (4) "the identification evidence was unreliable"; and (5) "[t]he court failed to dismiss a juror whose fitness to serve was compromised during trial by an arrest in the courthouse, and the court told the juror to lie to the other jurors about it and the court itself lied to the other jurors about the incident."
The docket sheet for this action, maintained by the Clerk of Court, indicates that the petition was filed on July 6, 2010. "[A] pro se prisoner's complaint is deemed filed on the date that the prisoner 'turn[s] his complaint over to prison officials' for transmittal to the court, not when the court actually receives it." Abbas v. Dixon, 480 F.3d 636, 638 n.1 (2d Cir. 2007) (quoting Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)). The petitioner signed and placed his petition in the prison mailbox system on May 28, 2010. Thus, the Court deems the petition filed on May 28, 2010.
The respondent opposed the petition, arguing it "is mixed and should be dismissed" because it contains exhausted and unexhausted claims. The respondent noted the petitioner asserted the following claims on direct appeal: (1) evidence failed to prove his guilt beyond a reasonable doubt and the verdict was against the weight of the evidence; (2) he was deprived of the due process right to a fair trial by the prosecutor's improper cross-examination of the alibi witness; (3) the trial court erred when it admitted evidence of his prior relationship with Gilbert Ortega, involving drug dealing to show motive and intent; and (4) his due process right to an impartial jury was violated by the trial court's failure to dismiss a juror after he was arrested for drug possession during the trial and he was deprived of effective assistance of counsel, when counsel failed to object to the court's failure to dismiss that juror. The respondent contends Cordova-Diaz's claim that "[a] witness has been discovered who knows that [he] did not commit the crime" is unexhausted because it has not been raised in the state courts. According to the respondent, the state-court records do not indicate that Cordova-Diaz's motion, pursuant to New York Penal Law ("PL") § 440.10, to vacate judgment based on this claim, has been filed, and the attorney he retained to submit that motion on his behalf confirmed that "a motion had yet to be filed." The respondent maintains that, "while it is within this Court's discretion to stay a mixed habeas petition to allow a petitioner to present his unexhausted claims to the state court, such relief is unwarranted in this case" because "this Court has nothing upon which to determine whether good cause actually exists justifying a stay, since petitioner offers no description of the supposed newly discovered evidence, nor does he proffer any explanation as to why he has yet to file a motion [to vacate the judgment of conviction]. Neither does [the petitioner] explain why the purported evidence could not have been discovered sooner."
By a letter, dated November 8, 2010, Cordova-Diaz informed the Court that, in December 2008, he retained an attorney, Robert M. Sanchez ("Sanchez"), to submit a motion to vacate the judgment of conviction on his behalf, "which [he] thought was pending in the lower state court." Cordova-Diaz contends that he only learned his attorney did not submit the motion to vacate judgment on his behalf when he received the respondent's opposition to his petition. Cordova-Diaz requests that his petition be stayed and held in abeyance until he exhausts his unexhausted claim in the state courts. In support of his request for a stay, Cordova-Diaz submitted a "draft" of the motion to vacate the judgment of conviction, prepared by his attorney.
On November 23, 2010, the Court noted it lacked sufficient information to determine whether: (a) Cordova-Diaz established good cause for his failure to exhaust the unexhausted claim with the state court; and (b) his claim of innocence, based on newly discovered evidence is meritorious. The Court ordered Cordova-Diaz to file an affidavit by his attorney, explaining the reason why a motion to vacate the judgment of conviction, containing the petitioner's unexhausted claim, has not been made since December 2008, when counsel was engaged and to file his own affidavit, stating the facts supporting his claim of innocence, based on newly discovered evidence.
On December 10, 2010, Cordova-Diaz filed his affidavit in which he asked: (i) "to withdraw his actual innocence claim since it is not based on newly discovered evidence"; and (ii) to stay and hold in abeyance his petition because "the unexhausted claims presented in Mr. Sanchez's [draft motion to vacate the judgment of conviction] are potentially meritorious." Cordova-Diaz contends that, at the time he filed his petition, he believed that an affidavit of a person identified only as "Remo," "would have exonerated him had his trial counsel called/subpoenaed Remo to testify as a witness at the trial in support of his mistaken identification defense," but "[a]fter discussion with a law clerk in Eastern Correctional Facility's law library, [he] has come to the conclusion . . . that the circumstances revolving around Remo's alleged accounts is not newly discovered evidence." In the accompanying state-court motion draft, Cordova-Diaz asserts the following claims of constitutional violations: (1) he was denied effective assistance of counsel, based on counsel's "inadequate pretrial investigation and preparation," and failure "to utilize the available evidence that would have cast doubt on the [Cordova-Diaz's] guilt"; (2) "judgment was obtained in violation of [his] right to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and Brady v. Maryland, 373 U.S. 83 83 [S. Ct.] 1194 (1963), because, upon information and belief, an implied cooperation agreement between complainant Gilbert Ortega and the People was not disclosed"; (3) "material evidence adduced at the trial resulting in the judgment was false, and was, upon information and belief, prior to the entry of the judgment, known by the prosecutor to be false"; and (4) he "has established that there is a reasonable probability that he is actually innocent."
On December 10, 2010, Sanchez filed a declaration, in support of Cordova-Diaz's application for stay and abeyance, explaining that he was engaged to assist the petitioner in 2008. Upon receiving the record, Sanchez familiarized himself with the part of the record involving the sworn juror who had been caught with marijuana in his possession during the trial, but Sanchez found "not many cases on point" and "much of the caselaw . . . found did not favor the petitioner." However, Sanchez determined that, based on "the record file which was not used at trial, coupled with other information conveyed by the petitioner for which he himself had no direct evidentiary support, the defendant's guilt appeared less than certain." In December 2009, Cordova-Diaz's family engaged a private investigator to assist Sanchez in following some of the leads provided by the documents in the case file and by Cordova-Diaz and to locate and interview potential witnesses. According to Sanchez, he and the investigator have conducted a thorough investigation and any delay in filing the motion to vacate the judgment of conviction "is due primarily to the fact [sic] investigating this matter thoroughly years after the occurrence is not a simple or quick task." Sanchez also confirms that the evidence to which Cordova-Diaz refers in connection with his claim of innocence based on Remo's testimony is not a newly discovered evidence, because it was available to Cordova-Diaz at the time of the trial.
On January 20, 2011, the respondent filed a supplemental affidavit, contending: "While petitioner raises new claims not contained in the instant petition, namely ineffective assistance of counsel, right to an impartial jury, and an alleged Brady violation, he did not, however, provide an affidavit from his attorney." According to the respondent, Cordova-Diaz's claims, alleged in his draft state-court motion, are untimely and do not relate back to the claims in his petition because they "would apparently be based on new legal theories and on facts that are different from those raised in his petition."
On January 13, 2011, the Court directed the respondent to serve and file affidavits executed by a person admitted to practice in this court because the affidavit and the supplemental affidavit in opposition to the petition were both filed by an assistant district attorney, Cynthia A. Carlson ("Carlson"), who stated that she is "not admitted to practice before this Court and have prepared this affidavit under the supervision of Allen H. Saperstein ["Saperstein"], an Assistant District Attorney, who is admitted to practice before this Court." The Court also noted that no notice of appearance had been filed on behalf of the respondent. Thereafter, Saperstein filed a notice of appearance as well as the affidavit and supplemental affidavit in opposition to the petition.
Saperstein's supplemental affidavit, filed on January 20, 2011, with the exception of the first paragraph, where counsel identifies himself, repeats verbatim Carlson's supplemental affidavit, filed on December 16, 2010. Both supplemental affidavits, filed almost one month apart, represent to the Court, in an identical introductory paragraph—albeit containing different names of the affiants, both of whom refer to themselves as "he"—that "the following statements are true, except those statements made upon information and belief, which he believes to be true." No paragraph in either supplemental affidavit is identified as being "made upon information and belief." Both supplemental affidavits also represent to the Court that the petitioner "did not, however, provide an affidavit from his attorney" and state, in a footnote, that the respondent "faxed a copy of this Court's November 23, 2010 order to petitioner's attorney, Mr. Robert M. Sanchez, Esq." Additionally, Saperstein's supplemental affidavit relies on the memorandum of law submitted previously by Carlson, in which the respondent opposed Cordova-Diaz's motion for a stay based on the petitioner's failure to comply with the Court's November 23, 2010 order, because he "did not provide an affidavit from his attorney" and "the Court still lacks sufficient information to determine whether 'there was good cause for petitioner's failure to exhaust his claims first in state court.'" This argument must be rejected as frivolous because Sanchez filed his affidavit on December 11, 2010, Docket Entry No. 13, which was five days before Carlson filed her deficient affidavit and memorandum of law and forty days before Saperstein filed his supplemental affidavit, both of which misrepresented to the Court that the petitioner failed to comply with the Court's order by securing an affidavit from Sanchez.
DISCUSSION
Federal courts "construe a pro se litigant's pleadings and motions liberally," and "allow amendments to a pro se litigant's pleadings more freely." Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008) ( citations omitted). Although Cordova-Diaz requests that his "petition be held in abeyance," the Court will consider his request as a motion for leave to amend and to stay the petition. Here, Cordova-Diaz seeks to amend his petition by removing his claim of innocence, which the respondent does not oppose. He also seeks to add the following claims to his petition: (1) ineffective assistance of counsel based on inadequate pretrial preparation and failure to use the available evidence; (2) failure by the prosecution to disclose an alleged implied cooperation agreement with Gilbert Ortega; (3) falsity of the material evidence and prosecutorial misconduct in connection with it; and (4) actual innocence, which are unexhausted and opposed by the respondent.
In analyzing the instant request, the Court considered whether its ruling would be a dispositive act requiring a report and recommendation to the assigned district judge. The Court determined it would not be, because a ruling on a motion to amend a pleading is non-dispositive, unless it removes a claim or defense from the action. See In Re Motor Fuel Temperature Sales Pract. Litig., 261 F.R.D. 577, 579 (D. Kan. 2009)
REQUEST TO WITHDRAW THE INNOCENCE CLAIM FROM THE PETITION
A motion to amend a habeas corpus petition is governed by Fed. R. Civ. P. 15. See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001). Once the time for amending pleadings as a matter of course expires, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Leave to amend, though liberally granted, may properly be denied for: 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)).
Although Cordova-Diaz requested to withdraw his innocence claim because he realized that it was not based on newly discovered evidence as he claimed in his petition, he stated in his supplemental reply:
The petitioner requested that the newly discovered evidence portion of the petition (page 6) be stricken from the petition. Ultimately, the petitioner's goal would be to amend the current petition to include the exhausted claims, after providing the state court an opportunity to address the claim [sic] by fairly presenting them in the same manner I would like to present to this Court, if I am permitted to amend my petition by the Court.Since the state-court-draft motion includes the innocence claim, it appears, as he states in his reply, that Cordova-Diaz wishes to withdraw his unexhausted innocence claim from the petition so he can raise it in the state court and, subsequently, return to this court with all the claims raised in the state court, including the innocence claim. However, even when a claim is unexhausted, a federal court reviewing a habeas corpus petition may deem the claim exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). New York law provides that a state court must deny a motion to vacate a judgment when, although sufficient facts appear on the record to permit adequate review of the issue raised upon the motion, a defendant failed unjustifiably to raise that issue on appeal. See PL § 440.10(2)(c).
Here, Cordova-Diaz and Sanchez represented to the Court that the innocence claim is based on evidence which was known to Cordova-Diaz and his counsel at the time of the trial. According to the excerpts from the trial transcript, contained in the state-court draft motion, the facts in connection with the innocence claim are in the record. Cordova-Diaz does not contend that his appellate counsel provided ineffective assistance to him by failing to raise this claim on appeal. Cordova-Diaz's motion to vacate the judgment of conviction based on the innocence claim, premised on evidence available to him at the trial, would have to be denied by the state court because he failed unjustifiably to raise that issue on appeal. Since the innocence claim is procedurally barred, the Court will deem it exhausted for the purpose of the habeas corpus petition. Cordova-Diaz's request to amend his petition, by withdrawing his innocence claim from it, is denied.
REQUEST TO ADD CLAIMS TO THE PETITION
Timeliness
On March 2, 2009, the New York Court of Appeals denied Cordova-Diaz leave to appeal from the denial of his direct appeal. See People v. Cordova-Diaz, 12 N.Y.3d 782, 879 N.Y.S.2d 59 (2009). His conviction became final on May 31, 2009. See 28 U.S.C. § 2244(d)(1(1)(A); Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Cordova-Diaz had until May 31, 2010, to file his federal habeas corpus petition, which he did, on May 28, 2010. See 28 U.S.C. § 2244(d)(1). However, his request to add the unexhausted claims to his petition was made on November 8, 2010, after the one-year statute of limitations had expired. Accordingly, Cordova-Diaz's unexhausted claims are untimely. See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S. Ct. 2120, 2129 (2001). Amending the petition to add untimely claims is futile, unless the untimely claims relate back to the claims asserted in the original petition. See Fed. R. Civ. P. 15(c).
Relation Back
Where, as here, a petitioner wishes "to amend his petition long after the one-year statute of limitations had run, he [is] required to show that his amended petition relates back in accordance with Rule 15(c)." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000). Rule 15(c) of the Federal Rules of Civil Procedure provides, in pertinent part: "An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(B). "An amended habeas petition . . . does not relate back (and thereby escape [the Antiterrorism and Effective Death Penalty Act of 1996]'s one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650, 125 S. Ct. 2562, 2566 (2005). Proposed new claims do not relate back to the claims in the original petition simply because they concern the same trial, conviction or sentence; rather the proposed new claims and the original claims must be "tied to a common core of operative facts" in order for relation back to be in order. See id. at 664, 125 S. Ct. at 2574.
The claims asserted in the original petition are supported by facts that differ entirely in both time and type from the facts needed to support the claims Cordova-Diaz wishes to add to his petition. In fact, the proposed new claims have nothing in common with the claims asserted in the petition. Therefore, Cordova-Diaz's request to add new claims to his petition is denied, because the new claims do not relate back to his original petition.
REQUEST TO STAY AND HOLD IN ABEYANCE THE PETITION
A district court has discretion, in limited circumstances, to stay and hold in abeyance a mixed habeas corpus petition, that is, one containing exhausted and unexhausted claims, in order "to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition." See Rhines v. Weber, 544 U.S. 269, 271-72, 125 S. Ct. 1528, 1531 (2005). Stay and abeyance is warranted only when a district court determines that good cause exists for the petitioner's failure to exhaust his claims in the state court. See id. at 277, 125 S. Ct. at 1535. "[E]ven if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.
Although Cordova-Diaz provided a reasonable explanation for his delay in pursuing the state-court proceedings, staying the petition is not warranted in this case because the petition cannot be amended to add the untimely claims.
CONCLUSION
For the foregoing reasons the petitioner's request to: (a) amend his petition, by withdrawing his claim of innocence from it, is denied; and (b) stay and hold the petition in abeyance is denied. Dated: New York, New York
February 7, 2011
SO ORDERED: Copies mailed to: Jason Cordova-Diaz
Allen H. Saperstein, Esq.
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE