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holding that petitioner was on notice of the factual predicate of his claim when he became aware of the existence of an eyewitness with potentially exculpatory evidence, not when petitioner's private investigator actually contacted the eyewitness
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Case No. 04-CV-4343 (KMK).
June 30, 2005
Michael Clancy, Green Haven Correctional Facility Stormville, N.Y., Pro Se Petitioner.
Nancy D. Killian, Esq., Assistant District Attorney, Office of the District Attorney, Bronx County, Bronx, N.Y., Counsel for Respondent.
OPINION AND ORDER
On December 7, 2004, Petitioner submitted a letter informing the Court that his private investigator and former attorneys had discovered potentially exculpatory evidence and that he therefore would like to assert new claims in this habeas proceeding. (Letter from Petitioner to the Court of Dec. 7, 2004 ("Petitioner's Letter Motion")) Petitioner acknowledges that he has not exhausted his state remedies for the new claims, as he is required to by 28 U.S.C. § 2254(b)(1)(A), and therefore requests that the Court (i) grant leave for Petitioner to amend his habeas petition to add the unexhausted claims, (ii) enlarge the record in this case, and (iii) stay this proceeding while he pursues state remedies based on the new evidence. Respondent does not oppose Petitioner's requests. For the reasons stated below, the Court grants Petitioner's requests for leave to amend the petition and to enlarge the record. Petitioner shall have until August 15, 2005 to submit an amended petition. For the time being, however, the Court denies Petitioner's request to stay this case because no unexhausted claims are currently before the Court. If Petitioner chooses to submit an amended petition containing unexhausted claims, he may renew his application for a stay, paying particular attention to the requirements set forth by the Supreme Court in Rhines v. Weber, 544 U.S. ___, 125 S. Ct. 1528 (2005).
The Court will issue a separate order instructing the docketing clerk to docket and place in the record the letter briefs submitted by the parties.
I. Background
A. Factual Background
Petitioner was convicted in 2000 in a New York State court of second-degree murder and criminal possession of a weapon in the second degree. Petitioner was given indeterminate sentences of 25 years to life on the murder count, and 7 to 14 years on the weapons count, to be served concurrently. Petitioner is currently incarcerated in the Green Haven Correctional Facility in Stormville, New York.
The murder victim was John Buono, and the murder took place in the early hours of March 30, 1997 at a Domino's Pizza restaurant in the Bronx. According to two eyewitnesses, Mr. Buono entered the restaurant to order a pizza. Shortly thereafter, a man came in to speak with him for a while, and then left. Later, another man entered the restaurant and shot Mr. Buono. In a lineup, both eyewitnesses identified Petitioner as the shooter. B. The Exculpatory Evidence
The potentially exculpatory evidence that Petitioner presents as the factual predicate of his new claims is in the form of statements purportedly made by David Prieto, an alleged eyewitness to the murder who did not testify at Petitioner's trial. (One of the eyewitnesses who identified Petitioner as the shooter also identified Mr. Prieto as the man who was with Mr. Buono before he was shot.) Mr. Prieto apparently told federal prosecutors and others that another person was responsible for the killing, but has refused to provide Petitioner with an affidavit containing this information, despite the efforts of Petitioner's private investigator and former attorneys to convince him to do so. Mr. Prieto is incarcerated in a federal prison in California and has demanded that he be brought to New York and to potentially "get some time knocked off [his] sentence" before he will provide any testimony. (Letter from Prieto to Race, undated, attached to Petitioner's Letter Motion)
C. Procedural Background
After his conviction and sentencing, Petitioner pursued, through counsel, appellate and postconviction relief in New York State courts. After having apparently exhausted his claims in state proceedings, he filed the instant habeas case in this Court. Chief Judge Michael B. Mukasey approved Petitioner's request to proceed in forma pauperis on June 7, 2004, and the Petition was filed on the Court's docket on June 9, 2004.
The Court notes that where a pro se litigant is incarcerated, documents are effectively filed when delivered to prison officials for mailing. See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). The record shows that Petitioner gave the Petition to prison authorities for mailing on April 29, 2004, and thus, the case was commenced at that time.
This case was then assigned to Judge George B. Daniels. On July 9, 2004, Judge Daniels referred this case to the Honorable Michael H. Dolinger, United States Magistrate Judge, for habeas proceedings. On September 27, 2004, this case was reassigned to the undersigned for all purposes. Respondent submitted an opposition to the claims raised in the Petition on October 8, 2004. Respondent has not, however, challenged Petitioner's application to add new claims and stay the case. (Letter from Killian to the Court of Dec. 21, 2004 ("Respondent takes no position on petitioner's application . . . to stay this habeas corpus petition.")) On December 23, 2004, Petitioner submitted another letter providing more detail regarding his new evidence and renewing his requests. (Letter from Petitioner to the Court of Dec. 23, 2004)
By issuing this Order, the Court does not withdraw the reference to Judge Dolinger.
II. Leave to Amend
The Court first addresses Petitioner's request for leave to amend the petition. Habeas petitioners challenging state convictions are required to exhaust their state remedies before presenting their claims to federal courts. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court."). Although the Court has the authority to grant leave for a habeas petitioner to amend his or her petition under the standard provided by Rule 15(a) of the Federal Rules of Civil Procedure, see Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001), the Court may deny leave to amend where it would be futile to do so, see Jones v. New York State Div. of Military Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1998) ("[A] district court may properly deny leave when amendment would be futile.").
There are two issues with Petitioner's proposed amendments. First, as Petitioner concedes, he has not pursued state remedies on his new claims. Second, it appears that Petitioner's new claims may be barred under the federal habeas statute's one-year limitations period. The Court addresses each of these issues in turn.
A. Exhaustion
The habeas statute requires that "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). In Rose v. Lundy, 455 U.S. 509 (1982), the U.S. Supreme Court held that federal courts must dismiss a habeas petition that asserts an unexhausted claim, even if the Petition also asserts claims that are exhausted (so-called "mixed petitions"). See Lundy, 455 U.S. 509, 522 (1982) ("[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."). The Court based its holding on principles of comity, federalism, and judicial economy, finding that state courts should first have the opportunity to adjudicate a habeas petitioner's claims and that federal courts should be relieved of the burden of grappling with the issues raised by mixed petitions, such as determining which claims are exhausted and which are unexhausted. Id. at 518-21.
At the time the Supreme Court decided Lundy, there was no limitations period for federal habeas corpus claims. Thus, a petitioner whose mixed petition was dismissed could pursue state relief on the unexhausted claims without fear that the limitations period will run against his exhausted claims. However, "the enactment of [the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")] . . . dramatically altered the landscape for federal habeas corpus petitions" by preserving Lundy's total-exhaustion requirement but also by imposing a one-year limitations period on the filing of federal petitions. Rhines, 125 S. Ct. at 1533. The interaction of the total-exhaustion requirement with the one-year limitations period created the risk that some petitioners would never receive a review of their habeas claims in federal court. See id. ("If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review.").
As a result, many federal courts, including the Second Circuit, adopted various stay-and-abeyance procedures whereby "a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims." Rhines, 125 S. Ct. at 1534. The Supreme Court in Rhines set forth the standard that district courts should apply to determine whether a mixed petition should be stayed. The Court noted that it was concerned that frequent use of the procedure would erode AEDPA's "twin purposes" of "encouraging finality" and increasing the incentives for petitioners to exhaust all claims prior to filing a habeas petition in federal court. Id. Accordingly, the Court held that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 1535. The district court is also required to investigate whether the unexhausted claims are "plainly meritless," and deny the request for a stay if they are. Id.
See, e.g., Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001).
The fact that the new claims are unexhausted may counsel against allowing Petitioner leave to amend the Petition. However, because of the availability of the stay-and-abeyance procedure, the Court cannot at this time say that it would be futile to grant Petitioner leave to amend the Petition to add the unexhausted claims. The Court also notes that Respondent does not oppose Petitioner's request. (Letter from Killian to the Court of Dec. 21, 2004 ("Respondent takes no position on petitioner's application . . . to stay this habeas corpus petition.")) Finally, the Court is aware that the new claims that Petitioner seeks to assert are predicated on facts which, if established, suggest Petitioner's innocence, and thus the Court approaches them with special care. Therefore, the Court will grant Petitioner leave to amend notwithstanding that he seeks to add unexhausted claims, so long as he files a renewed request to stay the case along with the amended petition. Petitioner is cautioned, however, to read the Rhines decision carefully and be sure to follow all its requirements when reapplying for a stay.
B. Statute of Limitations
The Court's other concern is that the claims Petitioner wishes to assert based on Mr. Prieto's statements may be barred by the federal habeas statute's one-year limitations period. The habeas statute requires that a petitioner challenging a state-court conviction must file a petition within one year of the latest of the following:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Only subsections (A) and (D) appear relevant here. As for subsection (A), Petitioner's state judgment became final when the time for him to seek direct review of his conviction in the U.S. Supreme Court expired. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). There is no indication in the record that Petitioner sought a writ of certiorari from the U.S. Supreme Court nor does a search of the Supreme Court's online docket reveal that one was filed. Therefore, Petitioner's conviction became final on May 5, 2003, which is 90 days (plus 2 additional days for an intervening weekend) from February 3, 2003, the time the New York Court of Appeals denied Petitioner leave to appeal his conviction. Thus, under subsection (A), Petitioner had to seek federal habeas relief on his new claims no later than May 5, 2004, which he did not do.
Under U.S. Supreme Court Rule 13(1), the time to file a petition for a writ of certiorari is 90 days, and under U.S. Supreme Court Rule 30(1), if the last day of the filing period falls on a weekend, the time is extended to the next day the Court is open for business.
Subsection (D) provides that Petitioner could file a federal habeas petition within one year of whenever he could have discovered, through the exercise of due diligence, the "factual predicate" of his claims. See 28 U.S.C. § 2244(d)(1)(D). Petitioner "must be able to show that there is some new `factual predicate' to his claim that only recently could have been discovered." Duamutef v. Mazzuca, 01 Civ. 2553, 2002 WL 413812, at *8 (S.D.N.Y. Mar. 15, 2002).
It is clear that Petitioner has known about Mr. Prieto's statements for some time, and certainly longer than a year. A review of the materials submitted along with Petitioner's request for a stay reveals that the Bronx District Attorney's Office notified his trial counsel that Mr. Prieto had indicated that someone other than Petitioner was responsible for the murder prior to Petitioner's conviction in this case (which occurred on January 31, 2000). (Letter from Racolin to Karliner of Feb. 26, 1999, attached to Petitioner's Letter Motion) Even if trial counsel did not share this information with Petitioner, it is clear Petitioner knew enough to make inquiries in 2002 regarding Mr. Prieto to the U.S. Attorney's Office (Letter from Capers to Petitioner of Jan. 8, 2002, attached to Petitioner's Letter Motion), and his appellate counsel (Letter from Ferguson to Petitioner of Sept. 17, 2002, attached to Petitioner's Letter Motion). Petitioner's appellate counsel told him that Mr. Prieto would provide exculpatory testimony in late October 2002. (Letter from Ferguson to Petitioner of Oct. 30, 2002, attached to Petitioner's Letter Motion) Thus, it appears as if the one-year statute of limitations has run against Petitioner under subsection (D).
Petitioner argues that the new claims "could not have been found in due diligence," and that "[i]t was after I already filed my petition that attorneys Ronald Kuby and Daniel Perez, with the help of Michael S. Race, Private Investigator, finally made contact with an important eyewitness to the homicide I am currently incarcerated for." (Letter from Petitioner to the Court of Dec. 23, 2004, at 1) This argument suggests that Petitioner's new claims somehow did not accrue until contact was made with Mr. Prieto. But this Court's reading of the caselaw, however, reveals that the limitations period under subsection (D) "runs from the date a petitioner is on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim." Youngblood v. Greiner, 97 Civ. 3289, 1998 WL 720681, at *4 n. 4 (S.D.N.Y. Oct. 13, 1998). Petitioner was on notice that Mr. Prieto had potentially exculpatory testimony in October 2002 — if not much earlier — when his appellate counsel informed him that he had spoken with Mr. Prieto's attorney and that Mr. Prieto "is now willing to testify for you in your case," and that Mr. Prieto's "attorney assured me that he will exonerate you and name Mr. DeJesus as the actual killer." (Letter from Ferguson to Petitioner of Oct. 30, 2002)
Nevertheless, the Court is aware that Petitioner, who appears pro se in this case, has faced difficulties in developing his new claims, most notably that Mr. Prieto has refused to provide an affidavit containing exculpatory testimony. The Court is also aware that Petitioner's postconviction counsel adopted the legal strategy of attempting to convince the Bronx District Attorney's Office to reopen the case rather than pursuing postconviction remedies in court. (Letter from Kuby to Petitioner of Jan. 14, 2004 ("I think that it is best to allow [the Assistant District Attorney] to continue his investigation, rather than go running into court.")) Finally, the Court is aware that the Bronx District Attorney's Office has provided Petitioner with different and arguably inconsistent accounts of the potentially exculpatory information. It thus appears to the Court that the resolution of the limitations issue will need to occur on a more developed record, with further arguments from Respondent (who has provided no arguments to date), and from Petitioner.
For example, on February 26, 1999, William Racolin, an Assistant District Attorney, informed Petitioner's counsel that "the name of the person who allegedly killed [the victim] according to Prieto, as provided me by AUSA Capers, is `Drew.'" (Letter from Racolin to Karliner of Feb. 26, 1999, attached to Petitioner's Letter Motion) But on April 28, 2004, a different Assistant District Attorney informed Petitioner's counsel that "Mr. Prieto says nothing about who he believes was the actual shooter. . . ." (Letter from Weil to Kuby of Apr. 28, 2004, attached to Petitioner's Letter Motion).
The Court is also aware that certain tolling doctrines may apply to this case. For example, the statute of limitations may be equitably tolled if the Petitioner can show "extraordinary circumstances which prevented him from filing his petition on time," and that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
In addition, the Supreme Court left open the issue of whether an untimely claim may be allowed if Petitioner can present a credible claim of actual innocence under the standard developed by the Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995). Under Schlup, a Petitioner's procedural default can be excused if the Petitioner presents "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," and the Court finds that, in light of all the evidence, it is "more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 324, 327. However, the rule in Schlup applies only to capital cases, and the Supreme Court has yet to determine whether to extend it to other cases, such as this one. See Dretke v. Haley, 541 U.S. 386, 393-94 (2004) ("We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default."). While the Supreme Court has yet to address the applicability of Schlup to non-capital cases, the Second Circuit has held that, in fact, the standard developed in Schlup does apply in non-capital cases. See Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) ("[W]e see no reason not to apply the Schlup standard in the tolling context [in a non-capital case].").
Accordingly, the Court cannot determine conclusively, at this time, whether Petitioner's new claims are time-barred and therefore finds that granting leave to amend would not be futile. The Court grants Petitioner's request to amend the Petitioner's request to amend the Petition. Petitioner has until August 15, 2005 to submit an amended petition.
III. Expansion of the Record
The Court also grants Petitioner's request to expand the record. Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts governs requests to expand the record. The rule provides that "[i]f the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition." Sec. 2254 Cases R. 7(a). "Expansion of the record is not mandatory, however, and is left to the discretion of the trial judge." Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988). Since the Court has granted Petitioner's request to add new claims, the Court grants Petitioner's request to expand the record. Petitioner shall submit the new materials along with his amended petition.IV. Stay of the Proceedings
Having determined that Petitioner may amend his petition and expand the record based on his unexhausted claims, the Court now considers whether it should stay this case while Petitioner pursues state remedies on his unexhausted claims. Although the Court may, in its discretion, stay a habeas case while a petitioner pursues state remedies on unexhausted claims, see Rhines, 125 S. Ct. at 1534-35, the Court declines to do so here. The stay-and-abeyance procedure is available when the Court is confronted by a mixed petition, but no mixed petition is present in this case at this time. If Petitioner files an amended petition with unexhausted claims, the Court will consider a request to stay the case. However, if and when Petitioner re-applies for a stay, Petitioner must be sure to meet the requirements set forth in Rhines. Petitioner should also provide the Court with a detailed affirmation that states everything Petitioner knows about Mr. Prieto's exculpatory statements, including the exact date when Petitioner first learned that Mr. Prieto had stated that someone other than Petitioner was responsible for the murder. Petitioner is also advised to present a detailed history of all of the court proceedings in this case, including dates of all significant events, such as when the proceedings were commenced, dismissed, and appealed. If the State has done anything which prevented Petitioner from pursuing his new claims, Petitioner should include information about that as well.V. Conclusion
Accordingly, for the reasons stated above, it is hereby
ORDERED that Petitioner's requests for leave to amend and to enlarge the record are GRANTED. Petitioner shall submit an amended petition and any new supporting materials no later than August 15, 2005. It is further
ORDERED that Petitioner's request for a stay is DENIED WITHOUT PREJUDICE. Petitioner shall re-apply for a stay at the time he submits his amended petition.
SO ORDERED.