Opinion
00 Civ. 2874 (RCC)(KNF)
February 18, 2003
REPORT and RECOMMENDATION
I. INTRODUCTION
In March 2000, Brian Davis ("Davis"), proceeding pro se, made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Davis now moves to stay his habeas corpus petition pending adjudication in the relevant state courts of a motion, made pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction. In addition, Davis seeks to amend the petition for a writ of habeas corpus to add the claim presented in his CPL § 440.10 motion within thirty days of the conclusion of state court proceedings. Respondent opposes the motion; it is addressed below.
II. BACKGROUND
On March 17, 1995, Davis was convicted for murder in the second degree, after a jury trial in the New York State Supreme Court, New York County, and sentenced to an indeterminate term of imprisonment of twenty-five years to life. Thereafter, Davis appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. On December 22, 1998, petitioner's conviction was unanimously affirmed.See People v. Davis, 256 A.D.2d 200, 683 N.Y.S.2d 502 (App.Div. 1st Dep't 1998). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on April 6, 1999. See People v. Davis, 93 N.Y.2d 898, 689 N.Y.S.2d 710 (1999).
On March 15, 2000, Davis filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges that: (1) the trial evidence was insufficient to support petitioner's conviction for murder in the second degree; (2) petitioner's constitutional right to due process of law was violated because the indictment was based upon perjured testimony before the grand jury; (3) petitioner's Sixth Amendment right of confrontation was violated by the admission into evidence of hearsay statements; (4) prejudicial irrelevant evidence was admitted into evidence and this violated petitioner's right to due process of law; and (5) the prosecutor engaged in misconduct, thereby violating petitioner's right to due process of law.
On November 9, 2000, after filing his application for habeas corpus relief, Davis petitioned the Appellate Division for a writ of error coram nobis. The Appellate Division denied the application on June 21, 2001.See People v. Davis, 284 A.D.2d 1022, 728 N.Y.S.2d 114 (App.Div. 1st Dep't 2001).
Davis now seeks to stay his habeas corpus petition pending the trial court's ruling on his motion, made pursuant to CPL § 440.10, to vacate the judgment of conviction. The ground of petitioner's CPL § 440.10 motion is that his constitutional right to due process of law was violated because the prosecution knowingly offered perjured testimony at trial. Petitioner contends that, pursuant to CPL § 440.10 (1 )(g), his motion to vacate the judgment of conviction is based on newly discovered evidence and that the motion was made with due diligence following the discovery of the alleged new evidence. In urging the court to grant his motion to stay the petition, Davis relies upon the Second Circuit's decision in Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.),cert. denied, 534 U.S. 1015, 122 S.Ct. 506 (2001).
Respondent opposes petitioner's application to stay his habeas corpus petition. Respondent contends that petitioner's reliance on Zarvela is misplaced, for two reasons. First, unlike the petitioner in Zarvela, Davis does not seek to exhaust a claim that he raised in his original habeas corpus petition but, rather, an entirely new claim. Secondly, petitioner has been dilatory in raising his new claim whereas, inZarvela, the Second Circuit emphasized the importance of acting expeditiously to initiate exhaustion in the relevant state courts. Respondent contends further that petitioner is not entitled to amend his habeas corpus petition to add a new claim because the new claim does not "relate back" to Davis' original petition, a requirement under Fed.R.Civ.P. 15(c) where the statute of limitations for the underlying action has run.
III. DISCUSSION
Motion to Stay the Petition
Where a petition contains both exhausted and unexhausted claims, a court has discretion either to dismiss the petition without prejudice to renewal after exhaustion of state court remedies or to dismiss only the unexhausted claims and stay the balance of the petition with a requirement that the petitioner promptly pursue state court remedies and return to federal court. See Zarvela, 254 F.3d at 380-82.
However, a dismissal of the entire petition without prejudice may result in any newly filed petition being dismissed because the time during which the petition was pending in federal court is not exempted from the statute of limitations under 28 U.S.C. § 2244 (d)(2). See id. at 378-79; Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120 (2001). Thus, the Second Circuit has held that where "an outright dismissal 'could jeopardize the timeliness of a collateral attack,'" a court must stay the petition. Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 [7th Cir. 2000]).
In the present case, Davis' time to bring any exhausted claims expired on or about July 5, 2000, one year plus ninety days after the New York Court of Appeals denied his application for leave to appeal. See Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000). Thus, the dismissal of the petition "could jeopardize the timeliness" of Davis' habeas corpus petition because any newly filed petition would be time barred as to the exhausted claims. Accordingly, under Zarvela, a stay of the exhausted portion of Davis' habeas corpus petition pending the exhaustion of state remedies as to the other claims is mandated. A stay of the petition avoids the procedural obstacles which would arise if Davis were to withdraw his petition and resubmit it at a later date, or have his resubmitted petition treated as a second or successive petition.
Respondent's contention that Zarvela does not apply in this case is unfounded. In Zarvela, the petitioner sought permission from the assigned district judge to withdraw his habeas corpus petition "so that he could present a new claim to the state courts." Zarvela, 254 F.3d at 377. Moreover, having received permission to withdraw his application, the petitioner then raised his new claim in a motion to vacate the judgment of conviction. See id. In addition, where the court in Zarvela speaks of the need for "expeditious exhaustion," it is referring, not to the period between conviction and the filing of a collateral attack on the conviction in state court, but, rather, to the period after a district court has elected to stay a petition. Id. at 381. In that circumstance, the court concluded, the district court "should condition the stay on the petitioner's initiation of exhaustion within a limited period . . . and a return to the district court after exhaustion is completed, also within a limited period . . . ." Id. Thus, neither the fact that Davis has sought permission to stay his petition in order to pursue a new claim in the relevant state courts, nor the fact that he has raised his new claim over two years after filing his original habeas corpus petition, constitutes sufficient ground under Zarvela for denial of the instant motion.
Motion to Amend the Petition 28 U.S.C. § 2242 provides that a petition for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Amendments in civil actions are governed by Rule 15 of the Federal Rules of Civil Procedure. Where, as here, the statute of limitations for the underlying action has run, Rule 15(c) governs a motion to amend. See Fed.R.Civ.P. 15(c); Fama v. Comm'r of Correctional Servs., 235 F.3d 804, 815 (2d Cir. 2000). That section provides, in pertinent part: "An amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c). The standard for determining whether a claim arises out of the same conduct or occurrence "is whether the original complaint gave the defendant fair notice of the newly alleged claims." Fama, 235 F.3 d at 815.
Davis has moved to amend his petition after the one-year statute of limitations on his habeas corpus petition has run; therefore, he is required to show that his amended petition relates back to his original petition, in accordance with Fed.R.Civ.P. 15(c). In Fama, the Second Circuit did not provide guidance for conducting an inquiry into whether an original complaint gave a defendant fair notice of newly alleged claims. See Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at *9 (S.D.N.Y. July 13, 2001) (citing Fama, 235 F.3d at 815). Consequently, for the sake of procedural simplicity, courts have proceeded by assuming arguendo that a proposed amendment would relate back to a petitioner's original application and, thus, that amendment is permissible See, e.g., Newton, 2001 WL 799846, at *9; Mungin v. United States, No. 01 Civ. 5826, 2002 WL 109609, at *1 (S.D.N.Y. Jan. 25, 2002); Andreu v. United States, No. 01 Civ. 1178, 2001 WL 1488190, at *1 (S.D.N.Y. Nov. 21, 2001).
Here, the absence of guidance on this matter notwithstanding, a review of the record reveals that Davis' original habeas corpus petition gave respondent fair notice of the due process claim Davis now proposes to raise. As stated earlier, Davis' original petition claimed, inter alia, that his constitutional right to due process of law was violated because the indictment was based upon perjured testimony before the grand jury and also because the prosecutor engaged in misconduct. In opposing the petition, respondent had an opportunity to address the merits of these claims. The claim raised in petitioner's CPL § 440.10 motion, although it concerns alleged prosecutorial misconduct in the presentation of perjured testimony at trial, arises out of the same set of factual circumstances as petitioner's earlier claims. Thus, the original complaint gave fair notice of the newly alleged claims. Therefore, the Court finds, pursuant to Fed.R.Civ.P. 15(c), that petitioner's new claim relates back to his original petition for a writ of habeas corpus. Accordingly, petitioner's motion to amend his petition to add this claim should be granted.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's motion to amend his habeas corpus petition be granted. With respect to petitioner's motion to stay his petition, I recommend that the adjudication of the claims presented in the original petition be stayed and that petitioner's new claim alleging a violation of due process arising out of the use of perjured testimony at trial be dismissed in order to allow petitioner to exhaust his remedies in state court. While petitioner has initiated state proceedings in connection with his new claim, he should be directed to return to this court within thirty days after the conclusion of those proceedings. See Zarvela, 254 F.3d at 381.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).