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denying leave to amend where it was "apparent" that petitioner could have raised claim of ineffective assistance of trial counsel in New York Criminal Procedure Law § 440 motion, on direct appeal, or in petitioner's earlier coram nobis proceeding
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02 Civ. 8066 (LAK) (THK).
July 27, 2004
MEMORANDUM OPINION ORDER
Presently before the Court is Petitioner's application for a stay of this proceeding so that he may pursue new claims of ineffective assistance of trial counsel in state court, pursuant to New York Criminal Procedure Law § 440.10(h).
This habeas corpus proceeding was referred to this Court for a Report and Recommendation, in accordance with 28 U.S.C. § 636(b)(1)(B) and (C).
On December 12, 1997, Petitioner was convicted of second degree murder in New York Supreme Court, New York County, and sentenced to an indeterminate prison term of twenty-two years to life. The Appellate Division, First Department, unanimously affirmed Petitioner's conviction on September 26, 2000, and on December 8, 2000, the New York Court of Appeals denied Petitioner leave to appeal. See People v. Escobar, 275 A.D.2d 659, 713 N.Y.S.2d 685 (1st Dep't 2000), leave to appeal denied, 95 N.Y.2d 963, 722 N.Y.S.2d 480 (2000).
On September 11, 2001, Petitioner filed a pro se application for a writ of error coram nobis, alleging, inter alia, that he was denied effective assistance of appellate counsel because his attorney on direct appeal failed to raise claims relating to the ineffective assistance of trial counsel. Petitioner argued that "trial counsel committed a number of fundamental errors," such as failing to "subpoena a defense witness who had exculpatory evidence regarding [his] innocence; . . . fail[ing] to impeach People's witness on prior inconsistent statement; and . . . fail[ing] to make a specific objection to the People's improper impeachment of its own witness." (Petition for Writ of Error Coram Nobis, attached as Ex. I to Respondent's Appendix in Answer to the Petition, ¶ 31.) Petitioner contended that "[t]he foregoing establishes that my trial counsel was incompetent. And, by extension, my appellate counsel was incompetent for not raising the incompetence of trial counsel." (Id. ¶ 33.)
On May 9, 2002, the Appellate Division, First Department, denied Petitioner's application for a writ of coram nobis, see People v. Escobar, 294 A.D.2d 965, 744 N.Y.S.2d 755 (1st Dep't 2002), and Petitioner applied for leave to appeal to the New York Court of Appeals. On May 31, 2002, before the Court of Appeals ruled on Petitioner's application, he commenced the instant habeas corpus proceeding pursuant to 28 U.S.C. § 2254, asserting,inter alia, ineffective assistance of appellate counsel for appellate counsel's failure to pursue claims of ineffective assistance of trial counsel. Respondent moved to dismiss the Petition on the ground that Petitioner's ineffective assistance of appellate counsel claim was unexhausted, or, in the alternative, to stay the mixed Petition, while Petitioner exhausted this claim. On April 1, 2003, the Honorable Lewis A. Kaplan, U.S.D.J., granted Respondent's motion to stay this proceeding while Petitioner exhausted his state remedies with respect to the ineffective assistance of appellate counsel claims.
On May 27, 2003, the New York Court of Appeals denied Petitioner's application for leave to appeal from the Appellate Division's denial of his application for a writ of coram nobis.See People v. Escobar, 100 N.Y.2d 538, 763 N.Y.S.2d 3 (2003). Shortly thereafter, Petitioner advised the Court (Kaplan, J.) that he had exhausted his state remedies relating to his ineffective assistance of appellate counsel claims (see Letter from Jose Escobar to the Hon. Lewis A. Kaplan, U.S.D.J., dated June 1, 2003), and the Petition was placed back on the active docket. Respondent filed his opposition to the Petition on July 2, 2003.
Petitioner now seeks to stay this proceeding a second time, so that he may exhaust his state remedies with respect to the following claims of ineffective assistance of trial counsel: (1) failure "to investigate, interview witnesses, review and prepare both the law and the facts relevant to the defense"; (2) failure "to discuss with [Petitioner] the pros and cons of accepting or rejecting a plea offer"; (3) failure "to use a `911' police sprint report that contained possible exculpatory evidence identifying someone other than the defendant as the perpetrator"; (4) failure "to impeach the prosecution's main witness on prior inconsistent statements concerning his identification of the perpetrator of the shooting"; (5) failure to object to the prosecutor's impeachment of the People's witnesses, as well as inflammatory, speculative, and otherwise inappropriate arguments. (Letter from Jose Escobar to Magistrate Judge Katz, dated June 15, 2004, at 1-2.) As far as the Court is aware, Petitioner has not commenced state court proceedings with respect to these claims.
Respondent opposes Petitioner's request to stay the proceeding once again, primarily on the ground that Petitioner has unduly delayed the assertion of these claims. (See Letter from Assistant District Attorney Hilary Hassler, Esq., dated July 9, 2004, at 1.) Respondent further argues that Petitioner's ineffective assistance of counsel claims "are wholly conclusory in nature and include no specific factual allegations that might support a bid for relief." (Id. at 2.)
DISCUSSION
As it stands, the Petition contains only exhausted claims, and, because the necessity of a stay arises only after the Petition becomes "mixed" with exhausted and unexhausted claims, see Zarvela v. Artuz, 254 F.3d 374, 378-79 (2d Cir. 2001), the Court first considers whether Petitioner should be permitted leave to amend the Petition to include new ineffective assistance of counsel claims.
Amendments to federal habeas corpus petitions are generally governed by Rule 15 of the Federal Rules of Civil Procedure ("Rule 15"). See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000); Rule 11 of the Rules Governing Section 2254 Cases ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules."). After responsive pleadings have been served, Rule 15 provides that leave to amend the pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). This standard applies here, because Respondent submitted an Answer and Memorandum of Law in Opposition to the Petition one year ago, in July 2003. Thus, leave to amend should be granted unless there is an "apparent or declared reason — such as 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, [or] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962).
This Court concludes that Petitioner has inexcusably delayed the assertion of his ineffective assistance of counsel claims. Petitioner's judgment of conviction was entered over six-and-one-half years ago, and he proffers no plausible reason for why he failed to present these claims to the state courts in the intervening period, except for a vague contention that he has now located two unnamed witnesses who will support his claims. (See Letter from Jose Escobar to Magistrate Judge Katz, dated July 20, 2004.) Moreover, Petitioner offers no explanation for the delay in raising these claims in this habeas proceeding, more than two years after its commencement, and more than one year after he fully exhausted his ineffective assistance of appellate counsel claims, reactivated this action, and was served with Respondent's opposition to the Petition. Petitioner has not asserted that his claims arise from newly-discovered evidence, or that he was in some way prevented from raising these claims before filing his Petition. Cf. Rodriguez v. Portunodo, No. 01 Civ. 547 (GEL), 2003 WL 22966293, at *3 (S.D.N.Y. Dec. 15, 2003) (granting amendment and stay of petition where petitioner claimed to discover new evidence giving rise to new claim).
Petitioner fails to identify the witnesses or allege how they will support his claim that trial counsel rendered ineffective assistance of counsel. Indeed, with only one possible exception, the statements of third-party witnesses have no relevance whatsoever to the ineffective assistance claims Petitioner now wishes to assert.
It is apparent that Petitioner could have raised his ineffective assistance of counsel claims in the New York courts in a motion pursuant to N.Y. Crim. Proc. Law § 440, in a pro se brief on direct appeal, or in his 2001 state coram nobis proceeding, wherein he alleged various errors committed by trial counsel, but grounded his claim only in terms of his right to effective assistance of appellate counsel. Yet, he failed to do so. Similarly, just as Petitioner raised his ineffective assistance of appellate counsel claims in his Petition, and then returned to the state courts to exhaust the claims while this action was stayed, he could have raised his ineffective assistance of trial counsel claims and utilized the stay to exhaust those claims. Yet, he waited more than one year after the stay was lifted to seek another stay in order to raise additional unexhausted claims.
In short, Petitioner has been unjustifiably dilatory in seeking to raise his ineffective assistance of counsel claims. Cf. Littlejohn, 271 F.3d at 363 ("[A]lthough Rule 15 requires that leave to amend be `freely given,' district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory. . . .").
Without deciding the issue because it has not been addressed by the parties, there is strong reason to believe that Petitioner's proposed amendment of the Petition would be futile, which is an additional basis on which to deny leave to amend.See Lucente v. Int'l Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). For example, Petitioner's claims regarding his trial counsel's conduct at trial are record-based claims, and thus were required to be brought on direct appeal in the New York courts. See N.Y. Crim. Proc. Law § 440.10(2)(b). Petitioner is entitled to only one direct appeal, see N.Y. Court Rules § 500.10(a), which he has already utilized. Therefore, Petitioner is barred from seeking state court review of these claims, rendering them procedurally barred. Moreover, since the state courts have rejected Petitioner's claims of ineffective assistance of appellate counsel, it is unlikely that ineffective assistance of appellate counsel can serve as "cause" for the procedural default.
In addition, there is a substantial likelihood that Petitioner's ineffective assistance of counsel claims would be time-barred by AEDPA's one-year statute of limitations, see 28 U.S.C. § 2244(d)(1), taking into account the approximately six months that elapsed between the time that Petitioner's conviction became final and the time that he commenced the state coram nobis proceeding (which served to toll AEDPA's limitations period), and the thirteen months that has elapsed since June 2003, when this action was reactivated. There is nothing in the Petition that gives Respondent fair notice of the ineffective assistance of counsel claims now asserted, and therefore, it is doubtful that the assertion of these new claims would relate back to the filing of the original Petition. See Fama, 235 F.3d at 815.
CONCLUSION
Because Petitioner unduly delayed his assertion of the proposed unexhausted claims, he is denied leave to amend the Petition. It follows that Petitioner's request for a second stay of this proceeding is also denied. The claims in the Petition have been fully briefed and will be addressed by the Court in due course.SO ORDERED.