Opinion
Civil Action 20 Civ. 187 (PAE) (SLC)
06-16-2023
GEORGE FAY, Petitioner, v. ANTHONY F. ANNUCCI, Commissioner, New York State Department of Corrections and Community Supervision, and EARL BELL, Superintendent, Clinton Correctional Facility, Respondents.
TO THE HONORABLE PAUL A. ENGELMAYER, United States District Judge:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
The reader is advised that this Report and Recommendation contains references to sex offenses.
George Fay (“Fay”) filed a counseled petition for a writ of habeas corpus under 28 U.S.C. § 2254 (“Section 2254”) challenging his 2013 conviction, following a jury trial, for first degree rape and related sexual offenses against a victim who was incapable of consent. (ECF No. 1 (the “Petition”)). In the Petition, Fay asserted the single claim that the trial court's preclusion of his expert violated his right to present a defense under the Sixth Amendment to the U.S. Constitution. (Id. at 5-7). Respondent Anthony F. Annucci (“Respondent”), Commissioner of the New York State Department of Corrections and Community Supervision,which has custody of Fay, opposed the Petition (ECF Nos. 20; 21 ¶¶ 6-7). On February 14, 2023, the Court issued a report and recommendation recommending that the Petition be denied. (ECF No. 31 (the “R&R”)).
Respondent is represented by Letitia James, Attorney General of the State of New York. (ECF Nos. 13; 21 ¶ 2).
Fay has now moved (1) to stay the Petition while he pursues further relief in New York State court and (2) to amend the Petition to assert a claim for ineffective assistance of trial counsel (the “IAC Claim”). (ECF Nos. 38 (the “Stay Motion”); 48 (the “MTA,” with the Stay Motion, the “Motions”)). Respondent opposes both Motions, which the Honorable Paul E. Engelmayer has referred to the undersigned. (ECF Nos. 40; 49; 50). For the reasons set forth below, the Court respectfully recommends that both Motions be DENIED.
II. BACKGROUND
A. Factual Background
The detailed factual background of the criminal charges against Fay and the trial testimony is set forth in the R&R and is incorporated by reference. (ECF No. 31 at 2-16). The Court also employs the defined terms set forth in the R&R.
Most of the transcripts of the trial, which occurred in January and February 2018, are under seal. (ECF Nos. 3-5). The Court cites the trial transcript as “[date] Tr. [page].”
1. Trial court proceedings
The Indictment charged Fay with rape, criminal sexual act, and sexual abuse, all in the first degree. (ECF Nos. 1-1 at 4-5; 21-2 at 83). The Indictment charged that Fay engaged in the offenses in the early morning hours of July 9, 2016 with the victim, S.D., who “was incapable of consent by reason of being physically helpless.” (ECF No. 1-1 at 4-5).
Throughout the pretrial, trial, and sentencing proceedings, Fay was represented by retained counsel Daniel Bibb (“Bibb”), Stephen Saracco, and Noreen Travers. (ECF No. 31 at 9). During a January 8, 2018 pre-trial hearing, Bibb asserted that “alcohol consumption on all parties is going to be an issue in th[is] case,” and stated that he intended to call four to five witnesses, but did not identify them. (Jan. 8 Tr. 11, 24-25).
Jury selection began on January 10, 2018, at which time Bibb provided the trial court with a list of defense witnesses that included Dr. Michael Thorpe (“Dr. Thorpe”). (ECF No. 21-2 at 122). On January 17, 2018, while jury selection continued, the ADA noted that she had received from Bibb the week before the list of defense witnesses that included Dr. Thorpe, as to whom she demanded “any reports he's generated as well as [his] [curriculum vitae (“CV”)].” (ECF No. 1-6 at 20; Jan. 17 Tr. 2). The ADA noted that, based on her “brief interview” of Dr. Thorpe, he appeared to be “a sleep disorder doctor,” and therefore, she was inquiring whether “the defense [wa]s going to go into a sleepwalking defense.” (ECF No. 1-6 at 20; Jan. 17 Tr. 2). Bibb responded that he was not asserting a sleepwalking defense, but added that Dr. Thorpe's “area of expertise is not just sleep disorder, it is pharmacological [e]ffects on sleep [of] alcohol, drugs, things like that,” and acknowledged that there had “been no reports” on the topic. (ECF No. 1-6 at 20; Jan. 17 Tr. 2). Bibb said he would provide the ADA with Dr. Thorpe's CV the next day. (ECF No. 1-6 at 20; Jan. 17 Tr. 2). The trial court noted that the ADA was “entitled” to the CV. (ECF No. 1-6 at 21; Jan. 17 Tr. 3). By January 24, 2018, Bibb had yet to provide the ADA with Dr. Thorpe's CV. (Jan. 24 Tr. 568).
During the defense case, Fay testified, along with two character witnesses and an investigator who had searched the bedroom in which the incident occurred. (ECF No. 21-2 at 123; Jan. 29 Tr. 776, 780-887; Jan. 30 Tr. 911-39, 941-62, 963-82). After these three witnesses testified, Bibb announced his intention to call Dr. Thorpe as the fourth and final defense witness. (Jan. 30 Tr. 983). Bibb stated that he had provided the ADA with a CV for Dr.
Thorpe, who was:
an expert in sleep disorders and pharm[a]cological effects that alcohol intake consumption can have on a person [a]sleep. The specifics of it would be that there are situations where alcohol intake consumption and intoxication have such an effect on a person that they can be actually be sleeping but participating in physical activities that make[] them appear to be awake and conscious.(Id.). Bibb stated that he “would probably pose hypothetical questions [to Dr. Thorpe] based on some of the evidence that's been brought out at trial.” (Id. at 984). Justice Jackson asked the ADA “[h]ow much notice” she had, to which the ADA responded, “[t]his is the first I've heard.” (Id.). Bibb claimed to have given the ADA the CV “months ago”-even though the record showed that as of January 24, 2018, less than a week earlier, he had not-and had explained to her:
that it wasn't just sleep disorder - if maybe not months, at least a couple of weeks ago, not sleep disorders. I told her of the pharmacological effects that alcohol can have on sleep and behavior. So there's - I didn't know if I'm under a duty to get absolutely one hundred percent specific, but [the ADA] was aware of the expertise of Dr. Thorpe and potential for expert testimony in this area, and I specifically used the term the pharmacological effects of alcohol and potentially other substances because I was not aware if there was going to be any testimony about any ingestion of narcotics during the - well obviously there was not - but this was not on an e-mail but in a telephone conversation.(Id. at 984-85). The ADA responded:
I received the CV for the first time last Wednesday and that was after I asked Mr. Bibb in court. I followed up in the same email and he did not respond as to asking what the opinions the expert would be testifying to and what the basis of those opinions were.
We had one conversation, months ago, where he told me he might be hiring his sleep expert and that was - that was the total of that conversation.
In looking at Dr. Thorpe's resume, while it is extensive, his expertise based on this, as well as my researching[] him[,] seems to be in sleep disorders, namely, narcolepsy, insomnia, and sleep apnea.
I know that there is absolutely nothing in here in his history of where he's worked or from publications he's put out that say[] anything about his even knowledge of the pharmacological effects of alcohol. So I would have had no notice of this whatsoever so I would move to preclude this on that ground[].
Second, I would move to preclude it because I've looked as extensively as I could. And my attention, based on the limited information that I had is if there's going to be any expert testimony, it would be on the effect of alcohol on sleep, mainly, which appears to be people consume alcohol, they fall asleep in a deep sleep at first, and then, when the blood alcohol content [wears] off, they oftentimes get a more aggressive sleep.
Everything I've look[ed] into says, at most, that I have seen no information about this sleepwalking alcohol, so I would move to preclude that I see no studies on that unless counsel po[]ints to it otherwise.(Id. at 985-86). In response to the ADA's comments, Bibb did not point to any “studies” by Dr. Thorpe or anyone else, and the following colloquy ensued:
THE COURT: There would have to be proof that it's scientifically reliable; otherwise, any expert could “testify” on any matter.
[THE ADA]: That's the first thing I'm thinking. There is no prior hearing or written application to the Court asking, to wit, notice to the defense and prosecution asking for the Court to rule on this and hold a hearing.
MR. BIBB: I did tell [the ADA], months ago, what area that [] Dr. Thorpe would be testifying about. There was no objection [by] her at that time, and we've had -And it is true, that I[] only provided her the CV last week. But whatever the CV contains, or doesn't, goes to the weight of his testimony, not the admissibility.
THE COURT: At the very minimum, Mr. Bibb[], as you're well aware, this kind of evidence or testimony has to be done in a written form with plenty of notice and a ruling by the Court before I would permit it. So to just proffer this now when you've already had several witnesses testify, I'm at a loss to understand such a late notice that you're trying to do this.
MR. BIBB: I - unfortunately, this is one I could get to -
THE COURT: That's not an excuse. I'm precluding this. I'm not going to allow it. The inadequate notice to both the prosecution, to the Court to get a ruling whether there is indeed expert testimony that's permissible in the scientific community along the lines of whatever, and what you've just told me that someone can actually be intoxicated and not be aware they're participating, and the particular credentials of this witness, so I'm precluding it.
MR. BIBB: I have an exception.(Id. at 986-87 (emphasis added)). As the colloquy demonstrates, Bibb did not reference any Supreme Court decision, the Sixth Amendment, or other legal authority to support his effort to call Dr. Thorpe at this stage of Fay's trial. (See id.).
The transcript indicates that this statement was by the trial court, but from the context, the Court believes this is a typographical error and the speaker was in fact the ADA. (See id.)
After deliberating for parts of two days, the jury found Fay guilty of all three counts. (Feb. 2 Tr. 1148). The trial court sentenced Fay to ten years of imprisonment and five years of post-release supervision on both the Rape Count and the Criminal Sexual Act Count, and seven years of imprisonment and five years of post-release supervision on the Sexual Abuse Count, all to run concurrently. (ECF No. 1-1 at 8, 28-29).
2. Direct appeal
In his direct appeal to the Appellate Division, First Department (the “First Department”), Fay, represented by Mark M. Baker, Esq. (“Baker”) argued, inter alia, that, by precluding Dr. Thorpe's testimony, the trial court violated his Sixth Amendment right to present a defense. (ECF Nos. 1-2 at 4-13; 1-3 at 4-20; 21-2 at 11, 51-61).On March 5, 2019, the First Department unanimously affirmed the Judgment. People v. Fay, 170 A.D.3d 404, 404 (1st Dep't 2019). (See ECF Nos. 1-3 at 22-26; 22-2 at 1-5). As to the trial court's exclusion of Dr. Thorpe's testimony, the First Department held that:
The record contains excerpts, not a complete copy, of Fay's direct appeal briefs. (ECF Nos. 1-2 at 4-13; 1-3 at 4-20).
Internal citations and quotations marks are omitted from case citations unless otherwise indicated.
[t]he court providently exercised its discretion in denying [Fay]'s request, made late in the trial, to call an expert on sleep disorders, who would have testified about the effects of alcohol on sleep and behavior, including that consumption of alcohol can cause persons to engage unconsciously in physical activity while appearing to be awake, and to wake up unaware of the activity. To the extent the record establishes that the People had any advance notice of the content of this testimony, that notice was inadequate under the circumstances. This request would have required a lengthy midtrial continuance for a [Frye v. United States, 293 F. 1013, 1013 (D.C. Cir. 1923)] hearing . . . and for the People to obtain their own expert. Accordingly, the untimeliness of the request by itself thus warranted denial (see Matter of Anthony M., 63 N.Y.2d 270, 283-[]84 [1984]).Fay, 170 A.D.3d at 405. In the alternative, the First Department held that Fay “failed to offer any scientific basis for the proposed testimony” and,
did not preserve his contention that Frye is inapplicable because he only sought to introduce his expert's opinions based on personal experience, rather than explanation of a scientific theory, and we decline to review it in the interest of justice. As an alternative holding, we find that there is no evidence that the proposed expert had any experience with the proffered theory.Id. at 405-06. Finally, after observing that Fay “never asserted that, as a matter of constitutional law, he was entitled to introduce the expert testimony, [and] his request to do so only raised questions of state evidentiary law and trial management[,]” the First Department “decline[d] to review [his] unpreserved constitutional claim in the interest ofjustice[,]” but “[a]s an alternative holding, [] reject[ed] it on the merits (see Crane v. Kentucky, 476 U[.]S[.] 683, 689-90 [1986]).” Id. at 406.
The First Department denied Fay's subsequent motion to reargue, in which he had asserted that the transcript of the January 17 Proceedings contradicted the ADA's statement that she was unaware of Fay's proffer of Dr. Thorpe and “undercut[] the [First Department's] procedural finding that the request for the defense expert was not made until ‘late in the trial' and therefore would have required a ‘midtrial continuance.'” (ECF Nos. 1-4 at 18; 1-5 at 13; 222 at 6). On August 20, 2019, the New York Court of Appeals denied Fay's application for leave to appeal. People v. Fay, 34 N.Y.3d 930, 931 (2019).
3. The Petition
On January 9, 2020, Fay, represented by Baker, filed the Petition, asserting the single claim that the trial court's preclusion of Dr. Thorpe violated his Sixth Amendment right to present a defense. (ECF No. 1 at 5-7; see ECF No. 10). On July 10, 2020, Respondent filed a response and memorandum of law in opposition to the Petition. (ECF Nos. 20-22). On August 9, 2020, Fay filed a reply in further support of the Petition. (ECF No. 23).
Fay asserted as a separate count the argument that his Sixth Amendment claim was not procedurally defaulted. (ECF No. 1 at 5-6).
4. The R&R
On February 14, 2023, the Court issued the R&R. (ECF No. 31). The Court found that, although Fay's Sixth Amendment claim was exhausted, the First Department's application of the contemporaneous objection rule provided an adequate and independent state ground constituting a procedural default barring federal habeas corpus review. (Id. at 26-36).
Notwithstanding Fay's procedural default, the Court recommended in the alternative that the Sixth Amendment claim be denied on the merits. (ECF No. 31 at 38-48). First, the Court found that Fay had failed to present clear and convincing evidence contradicting the First Department's holding that the “advance notice” Bibb supplied-listing Dr. Thorpe as a defense witness and providing the ADA with his CV mid-trial-“was inadequate under the circumstances.” (Id. at 42 (quoting Fay, 170 A.D.3d at 405)). The Court observed that:
[t]he extent of the defense proffer about Dr. Thorpe's opinions consisted of Bibb's statements that:
(1) “Dr. [Thorpe]'s area of expertise is not just sleep disorder, it is pharmacological [e]ffects on sleep [of] alcohol, drugs, things like that[]”; and
(2) Dr. Thorpe was “an expert in sleep disorders and pharm[a]cological effects that alcohol intake consumption can have on a person [a]sleep. The specifics of it would be that there are situations where alcohol intake consumption and intoxication have such an effect on a person that they can actually be sleeping but participating in physical activities that make[] them appear to be awake and conscious.”(Id. at 42-43 (quoting ECF No. 1-6 at 20; Jan. 17 Tr. 2; Jan. 30 Tr. 983)). Bibb simultaneously, however, “disavowed any reliance on ‘a sleepwalking defense[,]' and admitted that there had ‘been no reports' on this topic.” (Id. at 43 (quoting ECF No. 1-6 at 20; Jan. 17 Tr. 2). The Court also noted that it was undisputed that Bibb “never requested a hearing or made a written application to the trial court concerning Dr. Thorpe's testimony.” (Id.)
Second, the Court found that Fay failed to “meet his burden of showing that Dr. Thorpe's opinions-whatever their substance-were ‘generally accepted in the relevant scientific community.'” (Id. (quoting People v. Bennett, 79 N.Y.2d 464, 472 (1992)). The Court noted the absence of “any studies or other basis from which the trial court could have concluded that Dr. Thorpe was qualified to provide an expert opinion for the jury's consideration.” (Id.)
Third, the Court found that the trial court's preclusion of Dr. Thorpe “did not rise to the level of constitutional error because, ‘in the context of this case, the admission of the testimony would not have created an otherwise non-existent reasonable doubt about [Fay]'s guilt.'” (ECF No. 31 at 44 (quoting Redding v. N.Y. State Dep't of Corr., No. 17 Civ. 7075 (CS) (JCM), 2020 WL 614835, at *16 (S.D.N.Y. Jan. 16, 2020), adopted by, 2020 WL 614385 (S.D.N.Y. Feb. 10, 2020)). Noting that Fay had “‘not formally challenged the sufficiency of the evidence used to convict him-and in fact raise[d] no other claim besides the one concerning the exclusion of his expert witness,'” the Court, after carefully reviewing the trial record, found that “any challenge to the sufficiency of the evidence thus ‘would have failed.'” (Id. (quoting Washington v. Schriver, 255 F.3d 45, 58) (2d Cir. 2001)).
Fourth, to the extent that Fay had sought to rely on Dr. Thorpe's personal experience rather than his expert opinions, the Court observed that “at no point before or during the trial did Fay establish that Dr. Thorpe had any personal experience with people drinking alcohol and then engaging in physical activities while asleep-or thinking that they were asleep-let alone sufficient personal experience on which the trial court could have concluded that Dr. Thorpe's testimony would aid the jury at all.” (ECF No. 31 at 46).
Fifth and finally, the Court deemed the Second Circuit's grant of a habeas corpus petition in Scrimo v. Lee, 935 F.3d 103 (2d Cir. 2019), distinguishable because, during Fay's trial, “the trial court did not err in excluding Dr. Thorpe's testimony” and “because [] the jury heard other arguments and evidence concerning whether S.D. was ‘physically helpless,'” such that “unlike the petitioner in Scrimo, Fay was not deprived of his constitutional right to present a complete defense.” (ECF No. 31 at 46-47). In conclusion, the Court found that “the First Department's holding that the trial court properly precluded Fay's request to call Dr. Thorpe was not ‘an unreasonable application of[] clearly established federal law.'” (Id. at 48 (quoting Redding, 2020 WL 614835, at *17)).
On February 17, 2023, Baker filed a letter noting that he had “just returned this date from being abroad,” and requesting, without opposition from Respondent, an extension of time “to communicate with [his] client and his family, who live out of the country, in order to determine whether they wish to proceed further.” (ECF No. 34). Judge Engelmayer granted the extension, and a further requested extension, setting April 24, 2023, as the deadline for Fay's objections to the R&R. (ECF Nos. 35-37).
5. The Motions
On April 24, 2023, Fay, still represented by Baker, filed the Stay Motion. (ECF No. 38). Describing the R&R as “predicated in its entirety on the failures of trial counsel,” Fay asserts that he had “elected to now proceed in Supreme Court, New York County, in order to litigate a motion pursuant to New York Criminal Procedure Law § 440.10(1)(h)[]” asserting a “new claim of the ineffective assistance of trial counsel,” and requests that the Petition “be held in abeyance pending those further proceedings.” (Id. at 1, 9 n.4). Fay argues that a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), rather than dismissal, is necessary “to preserve any recourse to federal review in the event he is unsuccessful in New York.” (Id. at 6). Fay suggests that he did not make “[a]n earlier motion [under § 440.10(1)(h)] based on allegations of ineffective assistance of counsel, [because it] would have been inconsistent with [his Sixth Amendment right-to-defense] claim on the merits.” (Id. at 10). Having now seen the R&R, however, Fay intends to raise in a new § 440.10(1)(h) motion that the “deficiencies” the Court described in the R&R justify “granting a new trial.” (Id. at 10-14). Accordingly, Fay asserts that Rhines and “the [C]ourt's inherent discretion” justify holding the Petition in abeyance pending litigation of the new § 440.10(1)(h) motion. (Id. at 14).
On May 3, 2023, Respondent opposed the Stay Motion, arguing that Rhines is inapplicable because Fay admits his Petition does not contain unexhausted claims, and, in any event, Fay fails to establish good cause for failing to exhaust his IAC Claim, which is meritless. (ECF No. 40 at 27 (the “Stay Opposition”)). Judge Engelmayer granted Fay's request for an extension until May 8, 2023 to file a reply in further support of the Stay Motion. (ECF No. 42). Before that deadline, however, Baker filed a letter dated May 4, 2023, stating that after reviewing the Stay Opposition “and giving the matter more thought, it [was] clear to [him] that there is a serious question about whether [he] may have erred in not moving first in state court.” (ECF No. 44 at 1). Acknowledging that it would be a “conflict of interest” for him to challenge the quality of his own representation of Fay, Baker referred Fay to Joel Rudin, Esq. (“Rudin”), for representation in connection with the new § 440.10(1)(h) motion, and requested, on Rudin's behalf, an adjournment for Rudin to enter his appearance and seek to amend the Petition. (Id. at 1-2).
On May 22, 2023, Rudin appeared on Fay's behalf and filed the MTA. (ECF Nos. 46; 48). In the MTA, Fay seeks leave to amend the Petition to assert the IAC Claim and seeks a stay of the Petition “while [he] exhausts that claim in state court.” (ECF No. 48 at 1). Fay did not attach a copy of his proposed amended Petition, but asserts that:
trial counsel was ineffective for failing to timely seek to admit Dr. Thorp[e]'s testimony, to present evidence of the general acceptance of sexsomnia and alcohol's role in that phenomenon, and to show why the testimony was necessary to Fay's defense. While the one-year habeas deadline has run, this claim relates back to the original claim because they share “a common core of operative facts.”(ECF No. 48 at 2 (quoting Tineo-Santos v. Piccolo, No. 19 Civ. 5038 (MKV) (JLC), 2021 WL 266561, at *3 (S.D.N.Y. Jan. 27, 2021)). Fay also argus that Baker's failure to litigate the IAC Claim, which was “not ‘plainly meritless,'” in state court “makes out good cause under Rhines, because it was an objectively unreasonable omission.” (Id. at 3). Fay argues that Baker's error “has risked forfeiting federal review of a meritorious ineffectiveness claim that goes directly to Fay's innocence,” and that “penalizing] Fay for his lawyer's error would be a manifest injustice.” (Id.)
On May 30, 2023, Respondent opposed the MTA, arguing that the amendment is untimely because the IAC Claim relies on different facts and therefore does not relate back to the Petition. (ECF No. 49 at 1-2 (the “MTA Opposition”)). See Fed.R.Civ.P. 15(c)(1). Respondent further opposes any stay, arguing that Fay has neither established good cause nor a meritorious claim, as is required under Rhines. (ECF No. 49 at 2-3). On June 2, 2023, Judge Engelmayer referred the Motions to the undersigned. (ECF No. 50).
III. DISCUSSION
The Court incorporates from the R&R the legal standards applicable to federal habeas corpus petitions. (See ECF No. 31 at 19-25).
1. Motions to stay habeas corpus petitions
The Supreme Court has recognized that a district court has authority to stay a petition for a writ of habeas corpus under 28 U.S.C. § 2254, but has cautioned:
[b]ecause granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, 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. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C.§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). Rhines, 544 U.S. at 277. “Even where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflects in AEDPA,” such that the court “should place reasonable time limits on a petitioner's trip to state court and back.” Id. at 277-78. In addition, a petitioner who “engages in abusive litigation tactics or intentional delay” is not entitled to “a stay at all.” Id. at 278.
Applying the guidance of Rhines, a district court may stay a mixed habeas corpus petition-i.e., one containing exhausted and unexhausted claims-if the petitioner has shown: “1) that he had ‘good cause' for his failure to exhaust his claims first in state court; 2) that his claims are not ‘plainly meritless'; and 3) that he has not engaged in ‘intentionally dilatory litigation tactics.'” Nieves v. Conway, No. 09 Civ. 3710 (SLT) (LB), 2011 WL 2837428, at *2 (E.D.N.Y. July 14, 2011) (quoting Rhines, 544 U.S. at 277-78); accord Vasquez v. Parrott, 397 F.Supp.2d 452, 464 (S.D.N.Y. 2005).
As to the first factor, “[c]ourts in this Circuit have found that to demonstrate good cause, a petitioner must show that some factor external to [him] gave rise to his failure to assert the claims in state court.” Brims v. Collado, No. 18 Civ. 6973 (KMK) (PED), 2022 WL 17669950, at *1 (S.D.N.Y. Dec. 14, 2022) (collecting cases). Examples of good cause include delays in state proceedings “by the prosecution and other circumstances beyond [petitioner's] control,” or unexhausted claims based on “documented evidence discovered after [petitioner] brought his habeas petition.” Fernandez v. Artuz, No. 00 Civ. 7601 (KMW) (AJP), 2006 WL 121943, at *7 (S.D.N.Y. Jan. 18, 2006), adopted No. 00 Civ. 7601 (S.D.N.Y. Sept. 7, 2006). Courts in this Circuit have taken differing views as to when ineffective assistance of counsel can constitute good cause for failure to exhaust, see Nieves, 2011 WL 2837428, at *3 (comparing cases), with some courts holding that ineffective assistance of counsel does not constitute good cause unless it meets the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Vasquez, 397 F.Supp.2d at 464 (finding that counsel's failure to raise argument in § 440.10 motion did not constitute good cause for failure to exhaust).
As to the second Rhines factor, a proposed ineffective assistance of counsel claim is plainly meritless when “it is not likely that [the] petitioner will prevail on his claim [] because he probably will not be able to show that the ‘omitted claim' . . . was clearly stronger than the claim actually presented by counsel,” and even if it had been raised, “prejudice resulted from the omission.” Brown v. Ebert, No. 05 Civ. 5579 (DLC) (KNF), 2006 WL 1273830, at *4 (S.D.N.Y. May 9, 2006) (denying motion to stay petition); see Duwe v. Bell, No. 20 Civ. 5403 (EK), 2021 WL 4480555, at *2 (E.D.N.Y. Sept. 30, 2021) (explaining that a claim is “plainly meritless when it is perfectly clear that the petitioner has no hope of prevailing”).
2. Motions to amend habeas corpus petitions
A motion to amend a federal habeas corpus petition is governed by Federal Rule of Civil Procedure 15(a), see Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001), which provides that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Under this standard, district courts “retain the discretion to deny [] leave [to amend] in order to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive,” Littlejohn, 271 F.3d at 363, or “on grounds of futility.” Ching v. United States, 298 F.3d 174, 180 (2d Cir. 2002); see Mercado v. Lempke, No. 07 Civ. 9865 (KMK) (PED), 2009 WL 2482127, at *4 (S.D.N.Y. Aug. 13, 2009) (noting that leave to amend habeas corpus petition “should be denied only in limited circumstances, e.g., where amendment is sought in bad faith, where such would unduly prejudice the opposing party[] or parties or where such would be futile”).
Under AEDPA, a petitioner has one year “from the latest of”-as is relevant here-“the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” to file a habeas corpus petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). “A conviction in a New York State court becomes final ninety days after an order of the Court of Appeals is filed, when petitioner's time to seek Supreme Court review has expired.” Espiritu v. Haponik, No. 05 Civ. 7057 (RJS), 2012 WL 161809, at *9 (S.D.N.Y. Jan. 19, 2012); accord Nieves-Andino v. Conway, No. 08 Civ. 5887 (NRB), 2010 WL 1685970, at *6 (S.D.N.Y. Apr. 20, 2010). The statute of limitations is tolled while any state post-conviction proceedings are pending after final judgment, see 28 U.S.C. § 2244(d)(2), but “the filing of a federal habeas petition does not toll the statute of limitations.” Espiritu, 2012 WL 161809, at *9 (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001)).
After the one-year filing period has expired, “a timely-filed habeas petition may be amended only if the new claim ‘relates back' to the original petition, which is to say that both claims ‘arose out of the conduct, transaction, or occurrence set out . . . in the original pleading.'” Zabala v. Ercole, No. 09 Civ. 10125 (PGG) (AJP), 2013 WL 5142194, at *3 (S.D.N.Y. Sept. 16, 2013) (quoting Fed.R.Civ.P. 15(c)(1)(B)), adopted by, 2016 WL 927227 (S.D.N.Y. Mar. 7, 2016). “An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). A claim that merely stems from the same “trial, conviction, or sentence” will not relate back; “rather, the claims must arise from the same common core of operative facts.” Zabala, 2013 WL 5142194, at *3 (quoting Mayle, 545 U.S at 664); see Espiritu, 2012 WL 161809, at *10 (denying leave to amend petition to assert untimely claims that did not relate back to original claims).
This Rule provides that an amendment “relates back to the date of the original pleading when: . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out- or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B).
B. Application
As an initial matter, the Stay Motion was prematurely filed because-as Fay concedes (see ECF No. 48 at 2)-the Petition does not contain the new, unexhausted IAC Claim that he now seeks to pursue in New York State court, and therefore, is not a “mixed petition” to which the Rhines framework would apply. Milton v. Racette, 91 F.Supp.3d 454, 455 (W.D.N.Y. 2015); see Williams v. Sheahan, No. 11 Civ. 2435 (KAM), 2011 WL 2437496, at *1 (E.D.N.Y. June 15, 2011) (explaining that petition that did not raise ineffective assistance claims was not a “mixed petition” and thus Rhines standards did not apply). Fay having subsequently filed the MTA, however, the Court may now appropriately consider Fay's application to amend simultaneously with his request to stay. See Simmons v. Sheahan, No. 14 Civ. 3998 (VB) (JCM), 2015 WL 5146149, at *4 (S.D.N.Y. Aug. 31, 2015) (collecting cases in which courts “consider[ed] stay and abeyance applications with a simultaneous motion to amend”).
The Court first focuses on whether Fay has satisfied the standard for leave to amend the Petition to add the IAC Claim before addressing whether a stay is warranted. See Williams, 2011 WL 2437496, at *1 (explaining that petitioner must first satisfy Rule 15(a) amendment standard before court could address request to stay petition); accord Milton, 91 F.Supp.3d at 456; see also Simmons, 2015 WL 5146149, at *4 (addressing petitioner's request to amend before analyzing request to stay).
1. Leave to amend
Fay does not dispute that he is seeking to add the IAC Claim well outside AEDPA's one-year statute of limitations, but argues that the claim relates back because it shares “a common core of operative facts” with the right-to-defense claim in the Petition. (ECF No. 48 at 2 (quoting Tineo-Santos, 2021 WL 266561, at *3). Respondent argues that the IAC Claim does not relate back, and is therefore untimely, because it “concerns facts that differ in time and type from his original claim that the ruling that excluded the proposed expert testimony impaired his defense.” (ECF No. 49 at 2).
Although neither party states when the one-year period expired, by the Court's calculation, it was no later than November 18, 2020, one year and 90 days from the date of the Court of Appeals' decision in People v. Fay, 34 N.Y.3d 930 (2019). See Espiritu, 2012 WL 161809, at *9. (See also ECF No. 1 at 17 ¶ 3).
In the first instance, Fay has not provided his proposed amended petition setting forth the IAC Claim, an omission that some district courts have deemed an independent ground to deny the MTA without prejudice. See Mitchell v. Superintendent, No. 20 Civ. 1189 (JLS) (LGF), 2022 WL 16964583, at *6 (W.D.N.Y. Nov. 16, 2022) (“A district court may properly deny leave to amend, however, where the petitioner fails to attach a copy of the proposed amended petition such that it is not possible to discern what amendments are proposed”), adopted by, 2023 U.S. Dist. LEXIS 94044 (W.D.N.Y. May 30, 2023); McCray v. Griffin, No. 16 Civ. 694 (LJV) (HKS), 2021 WL 4437169, at *2-3 (W.D.N.Y. Sept. 28, 2021) (denying habeas motion to amend where petitioner failed to provide proposed amended petition); see also Romero v. Napoli, No. 08 Civ. 8380 (CM) (HBP), 2013 WL 1479308, at *1-2 (S.D.N.Y. Apr. 1, 2013) (denying leave to amend where plaintiff failed to provide proposed amended complaint or detailed description of proposed amendments). The MTA, combined with the Stay Motion, does explain at least some of the facts and arguments underlying the IAC Claim, such that, “construed liberally,” Fay's Motions are “sufficient to explain the claims he intends to raise.” Spells v. Lee, No. 11 Civ. 1680 (KAM) (JMA), 2012 WL 3027540, at *4 (E.D.N.Y. May 23, 2012) (“Spells I”), adopted as modified on other grounds, 2012 WL 3027865 (E.D.N.Y. July 23, 2012) (“Spells II”). Further, the Court agrees that “[j]udicial efficiency would not be served by dismissing the [] motions and requiring him to re-file his proposed claims in a different format.” Id. While additional allegations supporting the IAC Claim would have been helpful, the Court has at least the minimum amount of information to evaluate whether leave to amend is warranted. The Court assesses whether the IAC Claim relates back to be timely under Rule 15(c)(1)(B), before addressing whether leave to amend is futile.
a. Relation back
The IAC Claim alleges that Fay's trial counsel-Bibb-was ineffective in his “failure to timely seek to admit Dr. Thorp[e]'s testimony, to present evidence of the general acceptance of sexsomnia and alcohol's role in that phenomenon, and to show why the testimony was necessary to Fay's defense.” (ECF No. 48 at 2). The allegations of trial counsel's ineffective representation are interwoven with the trial court's decision to preclude Dr. Thorpe's testimony, which the trial court based, at least in part, on trial counsel's failure to provide adequate notice to the ADA and file a proper pretrial motion. (See, e.g., Jan. 30 Tr. 986-87 (trial court explaining “I'm precluding this .... The inadequate notice to both the prosecution, to the Court to get a ruling whether there is indeed expert testimony that's permissible in the scientific community ....”)). The Petition asserted that the trial court's decision to preclude Dr. Thorpe was a constitutional error that violated Fay's Sixth Amendment right to present a defense. (See ECF Nos. 1 at 2, 7, 49-50; 10 at 49-68). In the MTA, Fay now seeks to “add[] a new legal theory, connected to the same operative facts as those already asserted”; i.e., that trial counsel's decisions (or omissions) caused, or at least contributed to, the preclusion of Dr. Thorpe's testimony, and therefore relate back to the Petition. Nickels v. Conway, No. 10 Civ. 413 (MAT), 2013 WL 4403922, at *4 (W.D.N.Y. Aug. 15, 2013) (holding that proposed new claims related back to original petition under Rule 15(c) and were not untimely); see Fernandez, 2006 WL 121943, at *8 (finding that proposed amended claim was “sufficiently factually related” to claim in original petition to relate back under Mayle standard). The Court finds that, because the IAC Claim relates back to the Petition, it is timely.
b. Futility
Although the IAC Claim is timely, it is unexhausted, as Fay concedes. (ECF No. 38 at 9 n.4). Thus, the Court “must address whether an amendment of the [P]etition to add this unexhausted claim would be futile.” Spells II, 2012 WL 3027865, at *5; see Hunt v. All. N. Am. Gov't Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998) (noting that, despite Rule 15(a)'s liberal standard, “it is proper to deny leave to replead where there is no merit in the proposed amendments or amendment would be futile.”). As the Court has explained (see ECF No. 31 at 21-23), all claims in a habeas corpus petition must be exhausted first in state proceedings, see 28 U.S.C. § 2254(b)(1)(A), and the Supreme Court has held that “federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines, 544 U.S. at 273. Where a motion to amend seeks to add an unexhausted claim, “allowance of the amendment would be futile if the court also declined to use the stay and abeyance procedure while the petitioner exhausts the claim in state court.” Rivera v. Ercole, No. 07 Civ. 3577 (RMB) (AJP), 2007 WL 2706274, at *22 (S.D.N.Y. Sept. 18, 2007), adopted by, 2008 WL 627507 (S.D.N.Y. Mar. 7, 2008); see Ramdeo v. Phillips, No. 04 Civ. 1157 (SLT), 2006 WL 297462, at *4 (E.D.N.Y. Feb. 7, 2006) (“The mere fact that claims are unexhausted does not make them futile, so long as a petitioner can obtain a stay of the habeas proceedings while he exhausts those claims.”). If the Court is not prepared to grant Fay a stay pending exhaustion of the IAC Claim, “it would be futile to grant leave to amend the [P]etition.” Id.
The Court thus turns to whether Fay has satisfied the standard for a stay under Rhines. Respondent concedes that Fay's “sequencing of his attacks on his conviction does not appear to have been a deliberately dilatory tactic,” such that the third Rhines factor is inapposite. (ECF No. 40 at 4). The Court therefore focuses on the first two Rhines factors: whether Fay has shown good cause for his failure to exhaust the IAC Claim previously, and whether the IAC Claim is plainly meritless.
i. Good cause
As to the first factor, Fay argues that the failure of his appellate counsel-Baker-to litigate the IAC Claim in New York State court constitutes good cause “because it was an objectively unreasonable omission” in three respects. (ECF No. 48 at 3). First, Fay argues that because the right-to-defense claim was “likely” defaulted-as the Court found in the R&R (see ECF No. 31 at 26-39)-to avoid the default, appellate counsel should have asserted trial counsel's deficient proffer as the cause of the preclusion. (ECF No. 48 at 3). Second, Fay argues that “because trial counsel's proffer was so tardy and lacking in detail, it was (and is) difficult to show that the trial court's denial of the proffer was unreasonable under AEDPA or that it affected the outcome of Fay's trial,” and thus Baker should have sought to “expand[] the record” to show what the “proffer should have been.” (Id.) Third, Fay argues that “appellate counsel acted unreasonably in deciding not to bring a [§ 440.10] motion for ineffectiveness without first contacting Dr. Thorp[e] and learning that trial counsel never even retained [Dr.] Thorp[e] or prepared him to testify,” and that such a motion on “a fuller record . . . would have protected Fay from the unfavorable rulings” in the R&R. (Id.)
Respondent counters that good cause does not exist because Fay's appellate counsel has conceded that he made the “tactical decision” to omit the IAC Claim from his direct appeal to avoid “undercutting]” the right-to-defense claim. (ECF No. 49 at 3; see ECF No. 38 at 10 (“An earlier motion, based on allegations of ineffective assistance of counsel, would have been inconsistent with” the claim that the New York courts “acted objectively unreasonably with respect to established Supreme Court precedent” in precluding Dr. Thorpe's testimony)). Respondent maintains that “appellate counsel's decision was a reasonable exercise of professional judgment” that does not establish good cause for the procedural default. (ECF No. 49 at 4).
Fay's good cause arguments conflate the ineffective assistance of trial counsel-on which he bases the IAC Claim-with the ineffective assistance of appellate counsel-which, in the MTA, he does not seek to add. (See ECF No. 48 at 2 (explaining that Fay is seeking to add “a claim that trial counsel was ineffective”) (emphasis added)). Construing Fay's arguments liberally, the Court interprets Fay to be arguing that the ineffective assistance of appellate counsel provides good cause for his failure to raise on direct appeal-and therefore exhaust-his claim that trial counsel was ineffective. As other courts in this District have recognized, however, that claim “would be a separate, unexhausted ineffective assistance of counsel claim that would not be the basis for a finding of good cause,” warranting denial of the Stay Motion. Vasquez, 397 F.Supp.2d at 464 (denying motion to stay and citing Murray v. Carrier, 477 U.S. 478, 485-92 (1986), superseded by statute on other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214).
In the interest of completeness and efficiency, the Court evaluates whether the performance of Fay's appellate counsel was so constitutionally deficient as to demonstrate good cause for failing to exhaust the IAC Claim. The Court begins with the Sixth Amendment, which guarantees a criminal defendant the right to effective representation on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). In evaluating a claim that counsel's representation did not meet the constitutional minimum, courts “indulge a strong presumption that counsel's conduct f[ell] within the wide range of professional assistance.” Strickland, 466 U.S. at 689. To overcome that presumption, a petitioner must establish both parts of the Strickland test by first showing that counsel's performance “fell below an objective standard of reasonableness,” id. at 688, and second, that there is a “reasonable probability” that, but for counsel's error, the outcome would have been different. Id. at 694. Courts apply this standard in both the trial and appellate context. See Smith v. Robbins, 528 U.S. 259, 285 (2000). In the appellate context, counsel is not obligated to raise every “nonfrivolous” argument, “if counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745. 751 (1983); see Thompson v. Lemke, No. 08 Civ. 3426, 2009 WL 4110290, at *11 (E.D.N.Y. Nov. 23, 2009) (“Counsel is under no duty to advance every colorable argument that could be made in light of the facts of petitioner's case.”); Wood v. Artuz, 39 F.Supp.2d 211, 216 (E.D.N.Y. 1999) (explaining that appellate counsel's choice of arguments “is usually a well-reasoned tactical decision, does not constitute ineffective assistance of counsel and does not constitute cause sufficient to excuse a procedural default”). Appellate counsel's representation must still meet prevailing professional norms. See Smith v. Murray, 477 U.S. 527, 535-36 (1986). The Second Circuit has held that “a petitioner may establish constitutionally inadequate performance [of appellate counsel] if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). To establish prejudice from appellate counsel's performance, the petitioner must show that, had counsel raised the omitted claim on appeal, “there was a reasonable probability that [the] claim would have succeeded” on appeal. Claudio v. Scully, 982 F.2d 798, 805 (2d Cir. 1992). While the evaluation of appellate counsel's performance is based “on the facts of the particular case, viewed as of the time of counsel's conduct,” Strickland, 466 U.S. at 690, the prejudice determination “may be made with the benefit of hindsight.” Mayo, 13 F.3d at 534; see Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (reiterating “the rule of contemporary assessment of counsel's conduct”).
Applying the first prong of the Strickland standard, the Court finds that the failure of Fay's appellate counsel to assert the IAC Claim does not rise to the level of constitutionally deficient representation. Appellate counsel believed that “[a]n earlier motion, based on allegations of ineffective assistance of [trial] counsel[] would have been inconsistent with the [right-to-defense] claim on the merits,” (ECF No. 38 at 10), demonstrating that he had a reasoned, strategic basis for not asserting the IAC Claim. This does not constitute ineffective assistance of counsel. See Culbero v. Lee, No. 11 Civ. 4452 (PAC) (RLE), 2013 WL 3388954, at *4 (S.D.N.Y. Dec. 26, 2012) (finding that appellate counsel's “reasons not to include” alternative arguments on direct appeal were “the province of appellate counsel” and did not constitute ineffective assistance), adopted by, 2013 WL 3388954 (S.D.N.Y. July 8, 2013); Wood, 39 F.Supp.2d at 216 (finding that appellate counsel's decision not to raise argument on appeal “was well justified” and therefore was “no basis upon which to excuse petitioner's procedural default”). While some could view Fay's appellate counsel's choice of arguments as “perhaps not compelling,” Thompson, 2009 WL 4110290, at *11-i.e., the IAC Claim could have been asserted as an alternative argument for reversal-the Court cannot say that electing not to assert the IAC Claim was not a “conscious, reasonably informed decision made by an attorney with an eye to benefitting his client.” Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001); see Hudyih v. Smith, No. 12 Civ. 1761 (SAS), 2015 WL 4040566, at *7 (S.D.N.Y. July 1, 2015) (finding that, “[f]ar from inadequate representation, appellate counsel's letters demonstrate that he made a strategic choice to not raise [an] ineffective assistance claim,” which “[t]he Supreme Court has recognized [] as effective advocacy”), aff'd, 684 Fed.Appx. 99 (2d Cir. 2017) (summary order); Thompson, 2009 WL 4110290, at *12 (finding that appellate counsel was not ineffective where decision not to raise additional arguments “appear[ed] from the record to have been strategic”).
Even if appellate counsel's decision not to assert the IAC Claim were constitutionally deficient, however, Fay has not satisfied the second prong of Strickland because he has not demonstrated that “there was a reasonable probability that the [] claim would have succeeded.” Claudio, 982 F.2d at 805. On direct appeal, the First Department not only rejected Fay's claims based on the preclusion of Dr. Thorpe, but after reviewing the record determined that “[t]he verdict was supported by legally sufficient evidence and was not against the weight of the evidence.” Fay, 170 A.D.3d at 404. The First Department rejected as “both implausible and [] contradicted by the victim's testimony, as well as by [Fay's] own testimony,” Fay's theory that S.D, “while in a semiconscious state resulting from intoxication and fatigue . . . mistook [Fay] for the other man, who was her sex partner, and unwittingly engaged in consensual sex with him.” Id. at 405. Because the First Department rejected the theory on which Dr. Thorpe's testimony would have been based, Fay cannot show that an ineffective assistance claim based on trial counsel's allegedly deficient proffer would have succeeded on direct appeal. See Cruz v. Griffin, No. 16 Civ. 8998 (CS) (JCM), 2019 WL 6220806, at *13 (S.D.N.Y. Oct. 24, 2019) (finding ineffective assistance of trial counsel based on failure to call expert meritless where objective evidence implicated petitioner in sexual assault and petitioner failed to show prejudice), adopted by, 2019 WL 6211262 (S.D.N.Y. Nov. 20, 2019); Bethea v. Walsh, No. 09 Civ. 5037 (NGG), 2016 WL 258639, at *22 (E.D.N.Y. Jan. 16, 2016) (finding ineffective assistance of trial counsel claim “meritless” where “[p]etitioner fail[ed] to explain why expert testimony was necessary to aid the jury in reaching its verdict”); McDowell v. Heath, No. 09 Civ. 7887 (RO) (MHD), 2013 WL 2896992, at *40 (S.D.N.Y. June 13, 2013) (finding ineffective assistance of trial counsel claim meritless where plaintiff failed to show prejudice from absence of expert testimony); Mohsin v. Ebert, 626 F.Supp.2d 280, 313 (E.D.N.Y. 2009) (finding ineffective assistance of trial counsel claim meritless where “there [was] no reason to believe that even if [defense experts'] opinions had been placed before the jury, there would have been a different verdict”), adopted by, 626 F.Supp.2d 280 (E.D.N.Y. 2009); see also Escobar v. Senkowski, No. 02 Civ. 8066 (LAK) (THK), 2005 WL 1307939, at *19 (S.D.N.Y. May 26, 2005) (“To establish prejudice from a defense attorney's alleged failure to call a witness, the petitioner must demonstrate, at the very least, that the witness was available to testify, and would have testified in a manner beneficial to the petitioner”), adopted as modified on other grounds, 2005 WL 2148712 (S.D.N.Y. Sept. 7, 2005).
Because Fay's claim of ineffective assistance of trial counsel would not have succeeded, appellate counsel's corresponding failure to raise the IAC Claim would similarly have failed on direct appeal. See Rolling v. Fischer, 433 F.Supp.2d 336, 351 (S.D.N.Y. 2006) (explaining that “there can be no claim of ineffective assistance of appellate counsel where the underlying claims of ineffective assistance of trial counsel are themselves meritless”); accord Thompson, 2009 WL 4110290, at *11; see also Brown, 2006 WL 1273830, at *4 (finding that petitioner was unlikely to prevail on claim of ineffective assistance of appellate counsel “because he probably [would] not be able to show that the ‘omitted claim' . . . was clearly stronger than the claim actually presented by counsel” or that “prejudice resulted from the omission”). (See also ECF No. 31 at 37-38 (finding that Fay had not asserted, let alone demonstrated, actual innocence)). Therefore, Fay has neither demonstrated that his appellate counsel's performance was constitutionally deficient under Strickland nor exhausted that claim in state court, and thus has not shown good cause for a stay under Rhines. See Vasquez, 397 F.Supp.2d at 464 (denying request for stay because unexhausted claim of ineffective assistance of appellate counsel was not good cause and was without merit); see also Murray, 477 U.S. at 485-92 (holding that ineffective assistance of counsel is not good cause to excuse procedural default unless it constitutes ineffectiveness of counsel under Strickland and that claim of ineffectiveness has itself been exhausted).
Finally, while Fay states that he “anticipate[s]” filing a § 440.10 motion (ECF No. 38 at 14), he has been aware of the facts underlying the IAC Claim since at least August 20, 2019-when the New York Court of Appeals denied leave to appeal, Fay, 34 N.Y.3d at 930-but Fay “to this day has not raised his ineffective assistance of trial counsel claim in state court.” Spells II, 2012 WL 3027865, at *6. This unexplained delay provides an additional reason to deny the Stay Motion for lack of good cause. See Tarafa v. Artus, No. 10 Civ. 3870 (AJN) (HBP), 2013 WL 245786, at *4 (S.D.N.Y. Jan. 23, 2013) (denying motion to stay where alleged ineffective assistance of counsel did not establish good cause and petitioner failed to explain delay in asserting new claim).
The Court recognizes that, until 2021, § 440.10 barred a post-conviction ineffective assistance of counsel claim that was based on the trial record and therefore could have been raised on direct appeal. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (citing former N.Y. Crim. P. L. § 440.10(2)(c)); see Ortiz, 2011 WL 1331509, at *8 (noting that, under former § 440.10(2)(c), “New York courts routinely deny 440 motions on ineffective assistance of counsel claims where the claim is grounded in the trial record but the defendant failed to raise the claim on direct appeal”). In 2021, the New York State Legislature amended the statute to exempt ineffective assistance of counsel claims from certain procedural bars under § 440.10(2)(c). See N.Y. Legis. 501 (2021), 2021 Sess. Law News of N.Y. Legis. Memo Ch. 501 (McKinney's). Thus, as of October 25, 2021, § 440.10(2)(c) “does not apply to the issue of ineffective assistance of counsel.” People v. Green, 201 A.D.3d 814, 816 (2d Dep't 2022); see Ervine v. Smith, No. 15 Civ. 9419 (ER) (SDA), 2022 WL 1094630, at *4 (S.D.N.Y. Apr. 12, 2022) (discussing 2021 amendment of § 440.10(2)(c)). While the fact that the IAC Claim was evident from the trial record would not, itself, preclude Fay from raising the IAC Claim in a § 440.10(2)(c) motion, the IAC Claim is deficient in other respects, as the Court explains.
Under the circumstances of this case, where Fay was represented on appeal by different counsel than had represented him at trial, and under controlling Supreme Court precedent, “strategic choices,” such as deciding which issues to raise on appeal, “made after thorough investigation of law and facts . . . are virtually unchallengeable.” Strickland, 466 U.S. at 690-91. Accordingly, the Court finds that Fay has failed to show good cause for his failure to raise the IAC Claim in the New York State courts. See Ortiz v. Heath, No. 10 Civ. 1492 (KAM), 2011 WL 1331509, at *9 (S.D.N.Y. Apr. 6, 2011) (denying leave to amend to add ineffective assistance claim where petitioner failed to show good cause for procedural default in not raising claim in state court); Rivera, 2007 WL 2706274, at *26 (denying leave to amend where petitioner sought to add unexhausted and meritless ineffective assistance of trial counsel claim).
ii. Futility
Even if Fay had established good cause, however, the IAC Claim is plainly meritless for the reasons set forth above, and therefore does not satisfy the second Rhines factor. Because Fay's IAC Claim is plainly meritless, “it would be an abuse of discretion to stay this case to permit [Fay] to return to state court to exhaust that claim.” Spells II, 2012 WL 3027865, at *6. In the absence of a stay, any amendment of the Petition to add the IAC Claim “would be futile,” and the Court therefore respectfully recommends that both the Stay Motion and the MTA be denied. Id.; see Degree v. Corey, No. 21 Civ. 11012 (CS) (JCM), 2023 WL 3984760, at *5 (S.D.N.Y. June 13, 2023) (denying motions to stay and to amend where petitioner did not establish good cause for failing to exhaust ineffective assistance counsel claim); Brims, 2022 WL 17669950, at *2 (denying leave to amend unexhausted claims as futile and denying corresponding stay); Jones v. Miller, No. 14 Civ. 9774 (PAC) (GWG), 2016 WL 8471357, at *9 (S.D.N.Y. May 17, 2016) (same), adopted by, 2017 WL 980335 (S.D.N.Y. Mar. 9, 2017); Adams v. Artus, No. 09 Civ. 1941 (SLT) (VVP), 2012 WL 1077451, at *12 (E.D.N.Y. Feb. 24, 2012) (finding motion to amend futile where “petitioner has failed to exhaust his remedies in state court and there is no proper basis for giving petitioner a stay so that he could exhaust his claims”), adopted by, 2012 WL 1078343 (E.D.N.Y. Mar. 30, 2012); Ortiz, 2011 WL 1331509, at *15-16 (denying motions to amend and stay where alleged ineffective assistance of appellate counsel did not provide good cause and proposed amended claims were plainly meritless); King v. Phillips, No. 03 Civ. 6073 (NGG), 2006 WL 3358996, at *4 (E.D.N.Y. Oct. 3, 2006) (finding that, because petitioner did not demonstrate “good cause for granting a stay of the instant habeas proceedings, it would be futile to grant him leave to amend his petition to the extent that he seeks to add unexhausted claims”); Ramdeo, 2006 WL 297462, at *7 (finding that “it would be futile to permit petitioner to amend his petition” where he sought to add unexhausted claims).
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that both Motions be DENIED. * * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).