Opinion
No. 04 Civ. 1333 (DLC)(KNF).
August 26, 2004
MEMORANDUM and ORDER
INTRODUCTION
In February 2004, Lawrence Lewis ("Lewis"), proceeding pro se, made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By memorandum endorsement dated March 10, 2004, the assigned district judge granted Lewis' request to amend his petition. Lewis now seeks to file a second amended petition to include an additional ground for habeas corpus relief. For the reasons set forth below, the motion is denied.
BACKGROUND
On May 14, 1998, following a jury trial, Lewis was convicted for, among other things, murder in the second degree. Previously, during a pretrial proceeding held in April 1998, Lewis objected to being indicted for both intentional murder and depraved indifference murder. Lewis argued that "a person cannot be an intentional murderer in one act and also be charged with a depraved indifference murder in the same action." However, the trial judge rejected Lewis' argument, stating that "[t]he People are allowed to charge [depraved indifference murder] in the alternative and they have charged it. They have charge[d] both counts. How I submit the case to the jury subsequently is another matter, but they're allowed to put both counts into the indictment and they have done it. . . ."
Lewis contends that the trial court's ruling on his objection was error. Lewis maintains, furthermore, that a recent decision of the New York Court of Appeals, in a case involving a similar issue, supports his claim concerning the propriety of the indictment and, thus, constitutes an "additional fact" warranting approval of the instant application for leave to amend his habeas corpus petition. In that case, viz. People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224 (2004), the court found that, because a depraved indifference murder count, which had been submitted to the jury along with, inter alia, a charge of intentional murder, was "unsupportable as a matter of law," the trial court had erred in allowing the jury to consider it.Gonzalez, 1 N.Y.3d at 469, 775 N.Y.S.2d at 228. The court concluded that "[i]nasmuch as this was a quintessentially intentional attack directed solely at the victim, the trial court erred in denying defendant's motion for a trial order of dismissal as to the depraved indifference count." Id. (citation and internal quotation omitted).
Lewis asserts that the court's ruling in Gonzalez is pertinent to his application for habeas corpus relief. Consequently, he seeks to amend his petition to include the claim that "the trial court erred when it allowed the prosecutor to submit two alternate theories of murder in the second degree for the shooting of one homicide victim at close range, in violation of defendant's equal protection, equal liberty and . . . due process right[s]. . . ."
In support of his application, Lewis has submitted, inter alia, copies of: (i) a notice of motion to dismiss the indictment, dated December 1997; and (ii) the affidavit he filed in support of that motion. According to Lewis, his previous submission of a motion to dismiss the indictment "preserved and exhausted th[is] issue" for habeas corpus review. Lewis also seeks a stay of the exhausted portion of his habeas corpus petition, pending the exhaustion of state remedies pertinent to his newly discovered claim.
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure governs motions to amend a petition for a writ of habeas corpus. See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 81(a)(2); Davis v. Artuz, No. 00 Civ. 2874, 2001 WL 1006723, at *1 (S.D.N.Y. Aug. 31, 2001); Fama v. Comm'r of Correctional Servs., 69 F. Supp. 2d 388, 393 (E.D.N.Y. 1999). Fed.R.Civ.P. 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading by leave of court . . . and leave shall be freely given when justice so requires."
The determination to grant or deny a motion to amend a complaint is within the discretion of the court. See New York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998). However, there must be good reason to deny such a motion.See Acito v. Imcera Group Inc., 47 F.3d 47, 55 (2d Cir. 1995) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 42 [2d Cir. 1979]). Futility of the amendment is a valid reason to deny the motion.See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962); Aequitron Medical, Inc., v. CBS, Inc., No. 93 Civ. 950, 1994 WL 414361, at *2 (S.D.N.Y. Aug. 5, 1994).
In this case, it would be futile for Lewis to amend his application for habeas corpus relief to add the proposed new claim. The ruling made by the trial court at petitioner's pretrial proceeding, namely, that the indictment of Lewis for both intentional murder and depraved indifference murder was not improper, conformed to the law as it existed at the time the ruling was made. See People v. La Mendola, 206 A.D.2d 207, 210, 619 N.Y.S.2d 901, 903 (App.Div. 4th Dep't 1994) ("[C]ases are decided in accordance with the law as it exists at the time the decision is made."). Moreover, even assuming that the court's decision in Gonzalez introduced a "new rule" concerning the propriety of charging a defendant for both intentional murder and depraved indifference murder with respect to the same act, the matter of whether the rule may be applied retroactively has not been decided by the state appellate courts.See La Mendola, 206 A.D.2d at 210, 619 N.Y.S.2d at 903 (reviewing the principles articulated by the New York Court of Appeals for determining whether a new rule it announces applies retroactively).
Therefore, under the circumstances, Lewis' claim, that the trial court erred when it permitted the prosecution to charge him under two alternative theories of the crime of murder in the second degree, does not appear to have merit. Accordingly, amendment of Lewis' habeas corpus petition to add this claim would be futile.
CONCLUSION
For the reasons set forth above, petitioner's application for leave to amend his petition for a writ of habeas corpus is denied.
SO ORDERED.