Opinion
03 Civ. 0470 (RCC) (HBP).
June 9, 2006
OPINION AND ORDER
I. Introduction
By a Report and Recommendation of even date, I recommended that the petition in this matter be dismissed because all claims asserted therein are either procedurally barred or not cognizable. The reader's familiarity with my Report and Recommendation is assumed.
By notice of motion dated December 7, 2005, petitioner sought (1) to stay consideration of his petition while he exhausted claims of ineffective assistance of appellate counsel, and (2) leave to amend his petition to add the ineffective assistance claims after they were exhausted. Petitioner has filed a petition for a writ of error coram nobis in state court to exhaust his claim that appellate counsel was ineffective. Petitioner did not, however, submit a proposed amended petition and the exact nature of the claims he seeks to add here is unknown.
For the reasons set forth below, the motion to stay and to amend is denied.
II. Analysis
Petitioner claims that a stay to permit him to exhaust his remedies in state court is appropriate pursuant to the Supreme Court's decision in Rhines v. Weber, 544 U.S. 269 (2005). Initially, Rhines is distinguishable because it addressed the propriety of staying a mixed petition in order to permit a petitioner to exhaust unexhausted claims. In this case, petitioner does not seek a stay to permit him to exhaust him to exhaust asserted, but unexhausted, claims. Rather, petitioner seeks a stay to permit to exhaust entirely new claims which he will then seek to add to his petition. At least one judge in this Circuit has held that a stay to permit exhaustion is not warranted until the petition is amended and the unexhausted claim is actually asserted. Clancy v. Phillips, 04 Civ. 4343 (KMK), 2005 WL 1560485 at *6 (S.D.N.Y. July 1, 2005).
Assuming, without deciding, that Rhines is applicable to this case, there is no basis for the stay because the ineffective assistance claims petitioner is asserting in state court could not provide a basis for habeas corpus relief. Rhines v. Weber, supra, 544 U.S. at 277 ("[T]he district court would abuse its discretion if it were to grant [a habeas petitioner] a stay when his unexhausted claims are plainly meritless.").
Based on the petition for a writ of error coram nobis that he submitted in state court, petitioner claims that appellate counsel was ineffective before the Appellate Division because of her delay in obtaining all transcripts and perfecting his appeal. Petitioner claims that this delay deprived him of his right to appeal. Petitioner's argument is plainly exaggerated and without merit. Although petitioner's appeal was not perfected until approximately five years after his sentencing, his appeal was ultimately heard and all of his arguments were considered and rejected by the Appellate Division. People v. Rodriguez, 293 A.D. 2d 336, 337-38, 742 N.Y.S.2d 2, 2-3 (1st Dep't 2002). Given the fact that petitioner's appeal was heard and decided, his argument that he was denied his right to appeal is frivolous. In addition, since petitioner has not shown any prejudice as a result of the delay, appellate counsel's delay in perfecting the appeal to the Appellate Division does not provide any basis for habeas corpus relief. Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994); Stubbs v. Leonardo, 973 F.2d 167, 169 (2d Cir. 1992); Mathis v. Hood, 937 F.2d 790, 794 (2d Cir. 1991); Diaz v. Henderson, 905 F.2d 652, 653-54 (2d Cir. 1990).
With respect to counsel's representation of petitioner before the New York Court of Appeals, petitioner claims that counsel was ineffective because she omitted claims that had been asserted before the Appellate Division without consulting with petitioner. As noted in my Report and Recommendation, three of petitioner's claims are procedurally barred in this Court because they were not raised before the New York Court of Appeals on direct appeal and there is no longer any procedure available to assert the claims in state court.
If petitioner is attempting to establish ineffective assistance of appellate counsel before the New York Court of Appeals to overcome the procedural bar concerning these claims, his theory is fatally defective. A criminal defendant in New York has no right to have his appeal heard by the New York Court of Appeals; all such appeals are discretionary. Chalk v. Kuhlman, 311 F.3d 525, 528 (2d Cir. 2002). A criminal defendant has no federal right to counsel with respect to discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 610-11 (1974). "[B]ecause [a habeas] petitioner does not have the right to counsel on a discretionary appeal, an error by counsel during such a discretionary appeal cannot be considered as cause that can excuse procedural default." Chalk v. Kuhlman, supra, 311 F.3d at 528, citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991); accord DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004).
If petitioner is attempting to establish ineffective assistance before the New York Court of Appeals as an independent basis for habeas corpus relief, his theory still runs headlong into controlling adverse precedent. The Second Circuit has squarely held that "even if counsel's performance in failing to include [habeas petitioner's] claims in his leave application fell below minimum standards of performance, this did not constitute a deprivation of the constitutional right to counsel because [habeas petitioner] had no constitutional right to counsel for the filing of that application." Chalk v. Kuhlmann, supra, 311 F.3d at 529; accord DiGuglielmo v. Smith, supra, 366 F.3d at 135.
In addition, as the Second Circuit has more recently held, recognition of a Sixth Amendment right to the effective assistance of counsel on a second-level, discretionary appeal would constitute a "new rule" within the meaning of Teague v. Lane, 489 U.S. 288, 299-300 (1989) and that such a right cannot, therefore, support a collateral attack on a pre-existing state conviction. Hernandez v. Greiner, 414 F.3d 266, 270-71 (2d Cir. 2005).
Accordingly, even if I assume that the procedure endorsed inRhines is available here, granting the stay would be an abuse of discretion because there is no realistic possibility that the claims petitioner seeks to exhaust could provide a basis for habeas corpus relief. The futility of the proposed claims also justifies denial of petitioner's motion to the extent that it seeks to amend the petition. Clancy v. Phillips, supra, 2005 WL 1560485 at *2 ("[T]he Court may deny leave to amend [a habeas corpus petition] where it would be futile to do so. . . .").
III. Conclusion
Accordingly, for all the foregoing reasons, petitioner's motion (1) to stay consideration of his petition while he exhausted claims of ineffective assistance of appellate counsel, and (2) for leave to amend his petition to add the ineffective assistance claims after they were exhausted, is denied in all respects.
SO ORDERED