Opinion
07 Civ. 9462 (CM) (HBP).
June 10, 2010
OPINION AND ORDER
By a letter dated November 28, 2007, petitioner, who has been convicted of various crimes in the courts of the State of New York and is currently in the custody of the New York State Department of Correctional Services, seeks to stay consideration of his petition for a writ of habeas corpus in order to permit him to exhaust previously unasserted claims. For the reasons set forth below, the application is denied.
The facts, prior history and principal legal issues are set forth in my Report and Recommendation of even date, familiarity with which is assumed.
As respondent notes, a stay of habeas corpus petition is appropriate when the petition contains both exhausted and unexhausted claims, the petitioner needs time to exhaust the unexhausted claims and a dismissal without prejudice would create a serious risk of the petitioner failing to recommence within the limitations period. See generally Clancy v. Phillips, 04 Civ. 4343 (KMK), 2005 WL 1560485 at *6 (S.D.N.Y. July 1, 2005). In addition
[i]n Rhines v. Weber, the United States Supreme Court stated three conditions that must be satisfied before the district court may grant a petitioner's motion to stay a mixed habeas petition. A petitioner must show 1) that he had good cause for his failure to exhaust; 2) that his unexhausted claims are potentially meritorious; and 3) that he did not engage in intentionally dilatory litigation tactics. 544 U.S. 269, 277-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (O'Connor, J.).Whitley v. Ercole, 509 F. Supp. 2d 410, 416 (S.D.N.Y. 2007) (Hellerstein, D.J.).
Petitioner here meets none of the criterial to warrant the issuance of a stay. First, the pending petition doe not contain both exhausted and unexhausted claims; all the claims petitioner asserts have been exhausted either on direct appeal or by way of a petition for a writ of error coram nobis. Petitioner seeks the stay to exhaust and assert entirely new claims. Second, petitioner offers no explanation for his failure to assert and exhaust his claims prior to filing his habeas corpus petition. Third, petitioner has not demonstrated that his unexhausted claims are potentially meritorious. After petitioner filed his application, I directed petitioner to describe the new claims he seeks to exhaust and he responded as follows:
The first and second ground raised in the Writ of Error Coram Nobis motion:
A) Whether adverse ruling or charge against the People in their failure to have key witness available to testify on the recall by the defense in violation of the agreement between the People and the defense base [sic] ineffective assistance of appellate counsel. U.S. CONST. AMEND. VI XIV; N.Y. CONST. ART. 1§ [sic].
B) Whether colloquy between the court, the people and the trial counsel concerning the prosecutorial misconduct and not fulfilling their statutory obligation, was trial counsel ineffective in not maintaining his position of moving to strike key witness testimony in its entirely [sic] base [sic] ineffective assistance of appellate counsel. U.S. CONST. AMEND. VI XIV; N.Y. CONST. ART 1§.
The ground raised in the section 440.10 motion:
A) Defendant was deprived of the effective assistance of trial counsel by virtue of trial counsel's failure to object to incriminating statements based on ineffective assistance of trial counsel, also this issue dehors the record. U.S. CONST. AMEND. VI XIV; N.Y. CONST. ART. 1§.
(Plaintiff's Undocketed Submission dated February 1, 2008).
With respect to the first claim, petitioner does not identify the putative "key witness" nor does he describe the testimony the witness would have offered. Thus, even if I assume there are no procedural obstacles to the assertion of this claim by way of a petition for a writ of error coram nobis, petitioner has not shown that the claim is potentially meritorious.
Petitioner's second claim is incomprehensible. Petitioner does not identify the "statutory obligation" that was allegedly violated, nor does he provide any hint as to how it was allegedly violated. Thus, petitioner has not provided sufficient information to support a conclusion that petitioner's second claim is potentially meritorious.
Petitioner's third claim appears to be an attempt to assert that his trial counsel was ineffective for failing to object to the admission of Thompson's dying declaration as violating the Confrontation Clause. For the reasons set forth in my Report and Recommendation, this claim is without merit. At the time of petitioner's trial in 2003, long-standing Supreme Court precedent taught that the admission of dying declarations did not violate the prohibition against hearsay. Mattox v. United States, 156 U.S. 237, 240-44 (1895). Trial counsel was not ineffective because she was unable to predict the outcome of Crawford. "`The Sixth Amendment does not require [appellate] counsel to forecast changes or advances in the law. . . .'" Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994), quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993); see Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009) ("counsel cannot be deemed incompetent for failing to predict that a higher court would overrule its earlier precedent"); Lisojo v. Rock, 09 Civ. 7928 (CM) (AJP), 2010 WL 1223086 at *33 (S.D.N.Y. Mar. 31, 2010) (Report Recommendation) (Peck, M.J.) ("[T]he Sixth Amendment does not require counsel to presage changes in the law.").
Finally, petitioner does not even address the issue of whether he engaged in intentionally dilatory litigation tactics.
Since petitioner does not satisfy any of the conditions for a stay of proceedings, his application is denied in all respects.
SO ORDERED