Opinion
14 Civ. 3998 (VB)(JCM)
08-28-2015
TYRONE SIMMONS, Petitioner, v. MICHAEL SHEAHAN, Superintendent of Five Points Correctional Facility, Respondent.
OPINION AND ORDER
Petitioner Tyrone Simmons, ("Petitioner") brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his state court conviction following a jury trial in New York State County Court, Westchester County. (Docket No. 1). In his original filing, dated May 9, 2014, Petitioner attached a motion to hold the petition in abeyance so he could exhaust a claim he was litigating in state court under New York Criminal Procedure Taw § 440.10. He also wanted the petition stayed so he could file a writ of error coram nobis after the resolution of his § 440.10 action. On September 24, 2014, Petitioner renewed his motion to hold the petition in abeyance. (Docket No. 9). Respondent Michael Sheahan ("Respondent") opposes the motion. (Docket Nos. 12 and 13). For the reasons set forth below, Petitioner's application is GRANTED.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the "Houston prison mailbox rule"). Petitioner certified that he delivered his petition to prison authorities for mailing on May 9, 2014. Unless otherwise noted, the Court adopts Petitioner's certification dates for all other filings discussed herein.
I. BACKGROUND
The Court limits the background facts to those necessary for the present application. A. The Crime, Conviction, and Post-Conviction State Court Proceedings
Petitioner was convicted on September 16, 2009 of three counts of sexual abuse in the first degree for his conduct on July 14, 2007. He was sentenced on October 16, 2009 to three consecutive determinate terms of imprisonment of seven years.
On December 8, 2010, Petitioner's appellate counsel submitted his brief to the Appellate Division, raising the following four arguments to challenge Petitioner's conviction on direct appeal: (1) one of the counts of sexual abuse was not proven; (2) Petitioner should not have been sentenced to consecutive sentences; (3) the trial court erred by failing to preclude a nurse witness; and (4) expert DNA testimony was prejudicial.
On August 10, 2011, Petitioner filed a pro se supplemental brief, raising one additional issue, namely, that he was denied effective assistance of counsel because he did not have an attorney when he was first arraigned. On December 19, 2011, the Appellate Division granted Respondent's motion to strike Petitioner's pro se supplemental brief because it raised matters dehors the record. The Appellate Division gave Petitioner the opportunity to refile, but Petitioner never did.
On March 13, 2012, the Appellate Division affirmed Petitioner's judgment of conviction and his sentence. People v. Simmons, 93 A.D.3d 739 (App. Div. 2012).
On March 19, 2012, Petitioner, through his attorney, sought leave to appeal to the New York Court of Appeals. The Court of Appeals denied Petitioner's application on May 4, 2012. People v. Simmons, 19 N.Y.3d 867 (2012).
On June 26, 2013, Petitioner filed a pro se motion to vacate judgment, pursuant to Criminal Procedure Law § 440.10, arguing that (1) the prosecution committed a Brady violation by failing to disclose a cooperator agreement between Jabar Williams, an adverse witness during Petitioner's trial, and the federal government, and (2) that the trial court improperly limited his cross examination of this witness. On December 17, 2013, the trial court denied Petitioner's motion, finding no evidence of prosecutorial misconduct because there was no evidence of an agreement between Jabar Williams and the federal government. The Court also found Petitioner's second argument record based and inappropriate for resolution on a § 440.10 motion.
The Appellate Division denied Petitioner leave to appeal on May 1, 2014, and the Court of Appeals denied Petitioner leave to appeal on May 10, 2014.
B. The Habeas Corpus Petition
Petitioner timely filed a habeas corpus petition on May 9, 2014. (Docket No. 1). In it, Petitioner organized his grounds for relief into two categories. The first reads: "Improper sentence. And, bolstered witnesses[.]" Petitioner expands on this first category as follows: "The Court [erroneously] imposed consecutive sentences for a single act that constituted 'two offenses' . . . [and] the Prosecutor's expert witness improperly bolstered witness testimony . . . by stating 'only 1% of these type of crimes are falsely accused.[']" Petitioner's second ground for relief is ineffective assistance of appellate counsel. However, he did not explain how his appellate counsel was deficient.
Attached to the petition is a motion to hold the petition in abeyance. (Docket No. 1). Construing this filing liberally, the Court finds that Petitioner submitted a "protective petition." Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (internal quotation marks omitted). Put simply. Petitioner requested the stay so that he could continue to exhaust his § 440.10 motion and then exhaust another claim by filing a writ of error coram nobis. Petitioner stated that he currently had pending a "Motion for permission to Appeal denial of leave to application to the Court of Appeals [sic], and Writ of Error Coram Nobis to the Appell[ate] Division 2 Dept [sic]." (Docket No. 1 at 12). Elsewhere, Petitioner stated that a "[w]rit of error will be filed pending the outcome of my Motion for permission . . . to appeal the Court of Appeals of New York." (Docket No. 1 at 7). The Court construes this and other language in the petition and attached motion—which are filed electronically as one document (Docket No. 1)—to mean that Petitioner wanted this Court to stay his habeas petition so that he could continue to exhaust his § 440.10 claims and then file a writ of error coram nobis.
See Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983).
In the attached affidavit in support of his motion to hold the petition in abeyance, Petitioner argued that he was currently appealing the Appellate Division's denial of his § 440.10 appeal to the New York Court of Appeals. (Docket No. 1). Petitioner further argued that, while he was waiting for a decision from the New York Court of Appeals, he did not believe that he could litigate another claim he wished to pursue in state court, namely, a writ of error coram nobis before the Appellate Division. Petitioner never specified in his petition or its attachments the bases for his ineffective assistance of appellate counsel claim.
On September 19, 2014, however, Petitioner filed a purported "renewal" of his motion to hold his petition in abeyance. (Docket No. 9). In that application, Petitioner advised the Court that the New York Court of Appeals denied his appeal related to his § 440.10 motion. He then requested, again, that this Court hold his petition in abeyance, allowing him to return to state court to file a writ of error coram nobis. Petitioner also stated, for the first time, the grounds for his ineffective assistance of appellate counsel claim, which are:
The identification conducted by Detective Meehan was unduly suggestive, where the evidence that the witnesses communicated during the photo array preview was not alleviated;(Docket No. 9 at 4-5). Finally, construing Petitioner's application liberally, the Court agrees with Respondent's interpretation that Petitioner further requested permission to amend his petition to include the claim from his unsuccessful § 440.10 motion, i.e., that the prosecution failed to fully disclose a cooperation agreement regarding Jabar Williams.
The People committed a disclosure violation by untimely disclosing phone records, and the trial court's failure to remedy the matter resulted in a denial of fundamental fairness:
The People committed a Brady violation when they failed to preserve a portion of a video tape offered at trial, disclosing the edited version that omitted the exculpatory view of the tape Defendant could have used in defense of the charges - the portion which did not show his presence that the people were aware of.
Respondent urges this Court to deny Petitioner's applications. (Docket Nos. 12 and 13).
II. STANDARD TO AMEND
Rule 15 of the Federal Rules of Civil Procedure, made applicable to habeas proceedings by 28 U.S.C. § 2242, Rule 81(a)(2) of the Federal Rules of Civil Procedure, and Habeas Corpus Rule 11, "allows pleading amendments with 'leave of the court' any time during a proceeding." Mayle v. Felix, 545 U.S. 644, 655 (2005) (quoting Fed. R. Civ. P. 15(a)). However, this rule is limited by the statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which requires habeas petitions to be filed within one year of a petitioner's conviction becoming final. 28 U.S.C. § 2244(d); Mayle, 545 U.S. at 654 (citation omitted). Thus, if an amendment is made after the statute of limitations expired, any new claim is untimely unless it relates back to the claims of the original, timely petition, i.e., the claims arise out of the same conduct, transaction or occurrence. Mayle, 545 U.S. at 655 (quoting Fed. R. Civ. P. 15(c)(2)). "[A]n amendment does not relate back if it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Pierre v. Ercole, 607 F. Supp. 2d 605, 608 (S.D.N.Y. 2009) (quotation marks and citation omitted).
The Court properly denies leave to amend when the proposed new claims would be futile, either because they fail to comply with the aforementioned procedural requirements or they lack merit. See Pierre, 607 F. Supp. 2d at 607 (denying leave to amend where ineffective assistance of counsel claims lacked merit and noting the timeliness requirement). In fact, Habeas Corpus Rule 4 requires the Court to "summarily dismiss the petition" if "'it plainly appears . . . that the petitioner is not entitled to relief in the district court.'" Mayle, 545 U.S. at 656 (alteration provided) (quoting Habeas Corpus Rule 4).
III. STANDARD FOR STAY
In Mines v. Weber, 544 U.S. 269 (2005), the Supreme Court clarified the district courts' ability to issue a stay and abeyance of habeas corpus petitions in limited circumstances. The purpose of the stay and abeyance is "to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to the federal court for review of his perfected petition." Rhines, 544 U.S. at 271-72. Thus, as an initial matter, a petitioner must have a mixed petition—one that contains both exhausted and unexhausted claims. See Rhines, 544 U.S. at 277-78 (discussing staying of a mixed petition to permit litigation of unexhausted state claims); Ortiz v. Heath, No. 10 Civ. 1492, 2011 WL 1331509, at *14 (E.D.N.Y. Apr. 6, 2011) ("stay and abeyance procedure applies only to petitions which contain unexhausted claims"). However, courts will also consider stay and abeyance applications with a simultaneous motion to amend. See, e.g., Ortiz, No. 10 Civ. 1492, 2011 WL 1331509, at *1 ("court construes petitioner's 'stay petition' . . . as a motion to amend the petition as well as an application to invoke the stay- and-abeyance procedure"); Cordova-Diaz v. Brown, No, 10 Civ. 5133, 2011 WL 723575, at *5-6 (S.D.N.Y. Feb. 8, 2011) (construing pro se application as seeking to amend petition and requesting a stay). Thus, if a petitioner meets this threshold inquiry, a stay and abeyance may only be granted if: "(1) good cause exists for the petitioner's failure to exhaust his claims in state court; (2) the unexhausted claims are not 'plainly meritless'[;] and (3) the petitioner has not engaged in intentionally dilatory tactics." Ortiz, No. 10 Civ. 1492, 2011 WL 1331509, at *14 (alteration provided) (citing Rhines, 544 U.S. at 277-78); see also Cordova-Diaz, 2011 WL 723575, at *5 (quoting Rhines, 544 U.S. at 271-72, 277).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009), and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and other cases, infra, only available by electronic database, accompany this Decision and Order and shall be simultaneously delivered to pro se Petitioner. --------
IV. DISCUSSION
Petitioner essentially brings two requests before the Court. His first request is that the Court allow him to amend his petition to add the Brady claim he unsuccessfully litigated in his § 440.10 motion to vacate his judgment. His second request is that the Court stay his petition so he can exhaust his three ineffective assistance of appellate counsel claims. The Court will address each request in turn.
A. § 440.10 Claim
In his September 19, 2014 application to this Court, Petitioner explicitly requested that he be allowed to litigate his Brady claim—regarding an allegedly undisclosed cooperator agreement—in federal court. Respondent argues that this application should be denied because it is an untimely motion to amend. Reading the petition liberally, however, it is clear that Petitioner always wanted to litigate this issue in federal court.
Throughout the petition, Petitioner mentioned his pending § 440.10 motion in state court. In his attached motion to hold the petition in abeyance, he wrote that, if his appeal of that motion failed in state court, "his conviction will be prime for argument in this honorable Court . . . ." Moreover, in the next paragraph. Petitioner transitions to discuss ineffective assistance of counsel, referring to this as "an additional issue [he] seeks to exhaust in state court." (Docket No. 1 at 20). Thus, the Court is satisfied that Petitioner preserved this issue in his original petition.
Accordingly, the Court GRANTS Petitioner's request to amend his petition to include a Brady claim regarding an allegedly undisclosed cooperation agreement between Jabar Wilson and the federal government.
B. Ineffective Assistance of Appellate Counsel
In his original filing, Petitioner indicated that one of his grounds for relief was ineffective assistance of appellate counsel. Petitioner did not specify how his appellate counsel failed him until September 19, 2014, but the Court deems the three arguments he later elaborated to relate back to his original petition. Therefore, the Court concludes that these claims may be asserted in an amended petition.
Moreover, the Court GRANTS Petitioner's application to stay this Petition in abeyance pending the resolution of his writ of error coram nobis in state court. First, Petitioner has demonstrated good cause for his failure to exhaust by citing the Supreme Court's dicta in Pace, 544 U.S. at 416, regarding a prisoner's "reasonable confusion about whether a state filing would be timely . . . ." Cf. Gomez v. Ercole, No. 09 Civ. 7723, 2010 WL 4118357, at *1 (S.D.N.Y. Oct. 19, 2010) ("Here, [the petitioner] has demonstrated possible good cause for his failure to exhaust his ineffective assistance of counsel claims. His confusion about whether he needed to exhaust [this claim] appears reasonable."). Second, his three proposed claims are not "plainly meritless." Rhines, 544 U.S. at 277. Third, "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278. Therefore, the Rhines factors are satisfied, and this Court GRANTS Petitioner's request that his petition be held in abeyance.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Petitioner's application for a stay. The petition is hereby stayed for 30 days from the date of this Order so that Petitioner may file his proposed motion in state court. If Petitioner files such a motion within that time, the petition will remained stayed until 30 days after he has completed his efforts to exhaust his ineffective assistance of counsel claim. See Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (endorsing 30-day periods to commence a state court proceeding and to return to the district court after exhaustion is completed). Petitioner is warned, however, that if he fails to comply with the conditions of this stay, the stay may be vacated retroactively as of the date it was entered and his ineffective assistance of counsel claim may be dismissed. Id. Respondent is not required to submit an answer to the Petition at this time.
Finally, the Court orders that the parties shall advise the Court when any time limit has passed such that the petition should no longer be stayed. Dated: August 28, 2015
White Plains, New York
SO ORDERED:
/s/_________
JUDITH C. McCARTHY
United States Magistrate Judge