Here, as petitioner has aptly asserted, "a motion to amend . . . to include an unexhausted claim, . . . 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. 1:07-CV-3577, 2007 WL 2706274, at *22 (S.D.N.Y. Sept. 18, 2007); accord Carr v. Graham, 27 F. Supp. 3d 363, 365 (W.D.N.Y. 2014) (holding that the district court's "refusal to grant a stay necessarily means that it would be futile to grant [p]etitioner's request to amend the petition, since he would be adding unexhausted claims on which the [c]ourt could not grant habeas relief."). Thus, in order to determine whether amendment is futile, the Court must first determine whether it would be willing to stay the present proceeding and allow petitioner to finish exhausting his claims in state court.
Because Escalera has failed to show good cause for his failure to exhaust his ineffective assistance of trial counsel claim, it would be an abuse of this Court's discretion to issue a stay. E.g., Carr v. Graham, 27 F. Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277 ("Because 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.")). Because the claims Escalera wishes to add are unexhausted, the Court's refusal to grant a stay necessarily means that it would be futile to grant his request to amend the petition, since he would be adding unexhausted claims on which the Court could not grant habeas relief. Carr, 27 F. Supp.3d at 365 (citing 28 U.S.C. § 2254(b)(2); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) ("A motion to amend should be denied only for such reasons as 'undue delay, bad faith, futility of the amendment. . . .'") (quotation omitted in original)).
"The absence of 'good cause' for the failure to exhaust is fatal to Petitioner's ability to fulfill the Rhines standard." Carr v. Graham, 27 F. Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277 ("Because 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.")). "Because the claims Petitioner wishes to add are unexhausted, the Court's refusal to grant a stay necessarily means that it would be futile to grant Petitioner's request to amend the petition, since [she] would be adding unexhausted claims on which the Court could not grant habeas relief."
The fourth option is not appropriate because, on the record before the Court, Petitioner cannot show “good cause” for failing to exhaust his claims sooner. Although Respondent's memorandum of law placed Petitioner on notice that Ground One was fully unexhausted, Petitioner never sought a stay-and-abeyance as to that claim. The failure to show good cause for failing to exhaust Ground One sooner “is fatal to [his] ability to fulfill the Rhines standard.” Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014). The Court accordingly concludes that the fourth option is inappropriate.
Petitioner cannot show good cause for failing to exhaust the ineffective assistance of trial and appellate counsel claims before filing this habeas petition, which “is fatal to [his] ability to fulfill the Rhines standard” for obtaining a stay-and-abeyance. Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014). The Court accordingly concludes that the fourth option is inappropriate.
“The absence of ‘good cause' for the failure to exhaust is fatal to Petitioner's ability to fulfill the Rhines standard.” Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277).
” Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277).
“The absence of ‘good cause' for the failure to exhaust is fatal to Petitioner's ability to fulfill the Rhines standard.” Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277 (“Because 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.”))
The lack of good cause, standing alone, is a sufficient basis to deny a stay. See Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014) (“The absence of ‘good cause' for the failure to exhaust is fatal to Petitioner's ability to fulfill the Rhines standard.”).
The lack of good cause, standing alone, is a sufficient basis to decline to stay a habeas petition. See Carr v. Graham, 27 F.Supp.3d 363, 365 (W.D.N.Y. 2014) (“The absence of ‘good cause' for the failure to exhaust is fatal to Petitioner's ability to fulfill the Rhines standard.”)