Opinion
01 Civ. 9397 (LAK) (THK)
December 16, 2002
MEMORANDUM OPINION AND ORDER
This habeas corpus proceeding was referred to me for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(a) of the Local Civil Rules of the Southern District of New York. Petitioner, a New York State prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. Currently before the Court Petitioner's motion to amend his Petition.
BACKGROUND
Petitioner Thomas Edwards is incarcerated at Sing Sing Correctional Facility in Ossining, New York, pursuant to a judgment of conviction for Murder in the Second Degree (N.Y. Penal Law § 125.25(3)) and Robbery in the First Degree (N.Y. Penal Law § 160.15(2)), rendered on February 2, 1995, after a jury trial in New York Supreme Court, New York County. Petitioner was sentenced as a second violent felony offender to concurrent, indeterminate prison terms of from twenty-one years to life on the murder count and from twelve to twenty-four years on the robbery count.
In his Petition, which was filed on October 25, 2001, Petitioner claims that (1) the trial court improperly curtailed cross-examination of a police witness concerning police guidelines on the use of deadly physical force; (2) the trial court's charge to the jury concerning "immediate flight" and its supplemental instructions were deficient; and (3) Petitioner was deprived of his right to be present when the trial court conferred with counsel about delivering an Allen charge to the jury, and that the Allen charge delivered was unfair. See Petition at 6a. Petitioner now seeks to add a fourth claim, contending that the police officers who arrested him lacked probable cause, and that the trial court's decision to deny suppression of evidence stemming from the arrest violated his Fourth Amendment rights. Respondent opposes the amendment.
DISCUSSION
Because the Court has not yet ruled on the merits of the original Petition, Petitioner's motion to amend is governed by Federal Rule of Civil Procedure 15(a). See Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir. 2001); Fama v. Cornm'r of Correctional Services, 235 F.3d 804, 815 (2d Cir. 2000). Rule 15 permits a litigant to amend the pleadings once as a matter of right before a responsive pleading has been served. See Federal Rule of Civil Procedure 15(a). Where a responsive pleading has been served, as is the case here, the Rule directs that courts "shall" grant leave to amend "when justice so requires." Id. While leave to amend generally should be freely granted, it may be denied where there is good reason to do so, such as undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility. See Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962); Weeks v. New York State (Div. of Parole, 273 F.3d 76, 88 (2d Cir. 2001) (same); Jones v. New York State Div. of Military Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (district court may deny leave to amend on grounds of futility)
Respondents filed an affirmation opposing the Petition on October 29, 2002.
Petitioner here moves to amend his Petition in order to add a Fourth Amendment claim. Petitioner claims, in substance, that the arresting police officers lacked probable cause to arrest him for the crimes charged, based on a report from a citizen who allegedly saw Petitioner and a codefendant discarding evidence in an alleyway. See Affidavit Substance of Proposed Amendment ("Pet. Aff.") at ¶ 7. Although Petitioner has not explicitly argued that the lack of probable cause led to the erroneous admission of evidence seized at the time of arrest, he did so argue in his Supplemental Appellate Pro Se Brief. Respondent contends that the proposed amendment should be denied because the claim is not cognizable on habeas review. This Court agrees and concludes that the amendment would be futile.
A proposed amendment is futile "if the proposed claim could not withstand a motion to dismiss for failure to state a claim upon which relief may be granted." Lucente v. Int'l Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)). See also Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (where there is no merit to a proposed amendment, leave to amend should be denied).
The Supreme Court held in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), that Fourth Amendment claims are not cognizable on federal habeas review so long as the state has provided the petitioner with an opportunity for full and fair litigation of the claim. Stone, 428 U.S. at 481-82, 96 S.Ct. at 3046; see also Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002); Capellan v. Riley, 975 F.2d 67, 69-72 (2d Cir. 1992).
Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in the New York courts. Prior to trial, Petitioner moved to suppress physical evidence and identification testimony, alleging, among other things, that he had been arrested without probable cause. (Pretrial Transcript ("P. Tr.") at 3-268.) He was granted a hearing on his motion, and, at that hearing, Petitioner's counsel cross-examined the prosecution's witnesses and presented arguments on Petitioner's behalf. The hearing court ruled against Petitioner. Petitioner appealed that ruling, and it was affirmed. See People v. Edwards, 278 A.D.2d 151, 717 N.Y.S.2d 596 (1st Dep't 2000). Petitioner then sought to appeal the Appellate Division's adverse ruling to the New York Court of Appeals, which denied leave to appeal. See People v. Edwards, 96 N.Y.2d 900, 730 N.Y.S.2d 798 (2000).
Petitioner thus had the full benefit of New York procedures to litigate his Fourth Amendment claim. These procedures satisfy Stone's requirements. See, e.g., Capellan, 975 F.2d at 70 n. 1 (citing with approval cases concluding that New York's procedures are facially adequate); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983); Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986);Davila v. Duncan, No. 00 Civ. 4916 (GEL), 2001 WL 1029416, at *2 (S.D.N.Y. Sept. 6, 2001).
Petitioner contends that he cannot be said to have had a full and fair opportunity to litigate his claim because the Appellate Division addressed his claim by merely holding that "we have considered and rejected defendants remaining claims, including those contained in theirpro se supplemental briefs." To be sure, the Stone bar to the review of Fourth Amendment claims is relaxed if there has been a breakdown in the underlying state process. See Capellan v. Riley, 975 F.2d at 70; Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978). However, it is well-settled that a summary denial on the merits by the Appellate Division "does not mean that the Appellate Division failed to conduct `a reasoned method of inquiry into relevant questions of fact and law.'" Riley, 975 F.2d at 71 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)).
Because Stone controls here, Petitioner cannot obtain relief on his Fourth Amendment claim. It follows that it would be futile to grant Petitioner leave to amend his Petition by adding the proposed claim. Accordingly, Petitioner's motion to amend is denied.