driven by petitioner. After noticing that petitioner's driver renewal stub, the car's registration, and the license plates did not match, Officer Dickenson asked petitioner to accompany her to the station house for proper identification. (Tr. at 69-72.) At the station house, Officer Dickenson performed a VIN computer check and ascertained that the car had been stolen. (Tr. at 73.) Petitioner was held in custody while Thompson and Walker were contacted. When they came to the precinct, Thompson and Walker immediately recognized and identified petitioner as the man who had robbed them at gunpoint. (Tr. 24-26.)
Petitioner was initially represented by Barry Goldstein. Goldstein was subsequently replaced with Michael Macklowitz. On February 25, 1981, before the jurors were sworn, Macklowitz was replaced by Jay Horlick. On the same day, petitioner walked out of the courtroom for a lunch break and failed to return. The trial was continued in absentia, and the jury convicted petitioner of robbery in the first degree, N.Y. Penal Law § 160.15(4) (McKinney 1988), and criminal possession of stolen property in the first degree, N.Y. Penal Law § 165.50 (McKinney 1975).
Petitioner was sentenced on December 18, 1981 to concurrent terms of imprisonment of six to eighteen years on the robbery charge and six years on the criminal possession charge. Thereafter, petitioner brought three motions to vacate judgment and two applications for writs of habeas corpus in state court. These motions and applications were denied. On March 3, 1986, his conviction was affirmed by the Appellate Division, Second Department, People v. Richards, 118 A.D.2d 604, 499 N.Y.S.2d 209 (2d Dep't 1986), and leave to appeal to the New York Court of Appeals was denied on May 9, 1986. People v. Richards, 67 N.Y.2d 1056, 504 N.Y.S.2d 1032, 495 N.E.2d 365 (1986).
By petition dated June 1, 1986, petitioner sought a writ of habeas corpus from the United States District Court for the Southern District of New York. Richards v. Scully, No. 86-8078 (S.D.N.Y. 1986) (Ward, J.). In that petition, he claimed that (1) his indictment was defective because it charged armed robbery but failed to charge separately possession of a weapon, an essential element of the crime of armed robbery; (2) he was selectively prosecuted and evidence was not preserved because the car and registration were returned to Thompson without a court order; (3) he received ineffective assistance of counsel; and (4) he was subjected to multiple punishments because both of his convictions were based on the same stolen property.
After respondent replied to petitioner's application, petitioner submitted a "Traverse" dated April 13, 1987, in which petitioner expanded on the claims in his petition. In addition, petitioner raised new claims under the headings "Denial of Due Process," "Denial of Equal Protection," and "Prejudice." In these sections, petitioner claimed that: (1) he was denied due process because the New York State Board of Parole improperly used the uncharged crime of possession of a weapon in his parole determination; (2) he was denied equal protection because he was not provided with a transcript to prepare his pro se supplemental brief for his state appeal; and (3) he was prejudiced by a 51 month delay in the state appellate process.
Petitioner discussed his initial claims under the headings "Ground I: Defective Indictment," "Ground II: Selective Prosecution," "Ground III: Multiple Punishments," and "Ground IV: Ineffective Assistance of Counsel." Intermingled with these claims, petitioner touched upon claims that: (1) at trial, the prosecutor led witnesses and changed facts and circumstances; (2) the prosecutor intentionally withheld evidence; (3) attorney Macklowitz was associated with the District Attorney's Office and had a conflict of interest; and (4) the in-court witness identifications were unnecessarily suggestive.
By order dated June 23, 1987, petitioner's application was transferred to this Court. On November 12, 1987, this Court denied the petition on the merits but did not address the additional grounds raised in the "Traverse." Richards v. Scully, No. 87-2230 (E.D.N.Y. Nov. 12, 1987) (Costantino, J.).
Subsequently, on November 30, 1987, petitioner filed a motion for reconsideration.
In his motion, petitioner renewed his claim that he had been denied equal protection because he had not received a transcript to prepare his pro se supplemental brief for his state appeal. He also made several references in his motion to his "Traverse" and some of the other grounds raised in that document.
By letter dated July 4, 1988, petitioner notified the district court that no action had been taken on his motion. In response to petitioner's letter, the pro se clerk sent petitioner a copy of his docket sheet and informed him that his case was closed. (Letter from Pro se Clerk to Petitioner dated July 11, 1988.) Shortly thereafter, on August 11, 1988, Judge Costantino ordered that judgment be entered in petitioner's case. The Clerk of the Court entered judgment on August 15, 1988.
Soon after petitioner wrote his letter, on July 13, 1988, he applied to the Second Circuit for a writ of mandamus or prohibition. Three days later, on July 16, 1988, petitioner filed a notice of appeal and an application for a certificate of probable cause with the circuit court. Petitioner asked the circuit court to review the district court's denial of his petition and apprised that court of the district court's inaction regarding his motion for reconsideration.
The district court issued a denial of a certificate of probable cause on July 26, 1988. Petitioner then filed a second notice of appeal with the Second Circuit on August 26, 1988.
The Second Circuit denied petitioner's application for a certificate of probable cause on January 11, 1989, Richards v. Scully, No. 88-2335 (2d Cir. 1989), and denied his application for a writ of mandamus on February 9, 1989. In re Richards, No. 88-3043 (2d Cir. 1989). Petitioner's application for a writ of certiorari was denied on April 24, 1989. Richards v. New York, 490 U.S. 1038, 104 L. Ed. 2d 411, 109 S. Ct. 1940 (1989).
In the current petition, dated November 13, 1990, petitioner seeks a writ of habeas corpus on the grounds that: (1) the prosecutor intentionally withheld exculpatory evidence; (2) petitioner's defense counsel had a conflict of interest because he was also an Assistant District Attorney; (3) he received ineffective assistance of counsel; (4) the in-court witness identifications were unnecessarily suggestive; (5) his trial was unfair because of trial court bias and prosecutorial misconduct; (6) petitioner was subjected to multiple punishments; (7) the trial court lacked jurisdiction because the indictment was defective; (8) the New York State Board of Parole improperly used the uncharged crime of possession of a weapon in their parole determination; and (9) he was denied equal protection because he was not provided a free transcript to prepare his pro se supplemental brief for his state appeal.
Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rule 9(b)") states:
Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Grounds three, six, and seven of the present petition were denied on the merits in petitioner's previous application. Richards v. Scully, No. 87-2230 (E.D.N.Y. Nov. 12, 1987) (Costantino, J.). These grounds, therefore, are dismissed under the first clause of Habeas Rule 9(b).
The remaining grounds in the present petition were raised in petitioner's "Traverse" but were not addressed by Judge Costantino in his memorandum and order denying petitioner's habeas application.
Since these grounds were previously available to petitioner, the state argues that the present petition should be dismissed as an abuse of the writ under the second clause of Habeas Rule 9(b). The state argues that petitioner was obligated to raise all of his claims in his initial petition, that the "Traverse" was an inappropriate vehicle to raise new claims, and that it amounted to a subsequent petition.
The standard for abuse of the writ of habeas corpus is an inexcusable neglect standard. McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, 1468 (1991). In McCleskey, the Supreme Court held that "abuse of the writ is not confined to instances of deliberate abandonment. . . . [A] petitioner may abuse the writ by failing to raise a claim through inexcusable neglect." Id. at 1467-68.
To excuse failure to raise a claim in an earlier petition, petitioner "must show cause for failing to raise it and prejudice therefrom." Id. at 1470. The cause standard requires the petitioner to show that "some objective factor external to the defense impeded [his] efforts to raise the claim." Id. For example, petitioner could show cause by showing interference by officials that prevented him from raising all his claims or by showing that the factual or legal basis for a claim was not reasonably available to petitioner in his earlier petition. Id. "If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." Id. "Once the petitioner has established cause, he must show 'actual prejudice' from the errors of which he complains." Id. (citation omitted).
In the present case, given the liberal pleading standards and flexibility permitted pro se litigants, this Court finds it appropriate to address the three claims raised under the sections "Denial of Due Process," "Denial of Equal Protection," and "Prejudice," which, although raised in a belated and improper manner, were never addressed by the district court initially. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (pro se pleading is not subjected to the same scrutiny as pleading drafted by attorney); see also Merritt v. Florida, 359 F.2d 793, 794 (5th Cir. 1966) ("A letter from the appellant was properly treated by the district court as an amended petition. . . . [The] niceties of pleading are neither required nor expected of pro se applicants for post conviction relief . . . ."); Williams v. Lockhart, 772 F.2d 475, 480 (8th Cir. 1985) ("Although this [additional] claim was not raised in the initial pleading, it was addressed in later filings in detail. Given that Williams was proceeding pro se, his later filings should be treated as amending the pleadings."). Since these three claims were clearly presented but were not addressed, renewal of these claims in the present petition does not constitute an abuse of the writ.
However, with respect to the claims intermingled with petitioner's original claims, this Court believes that petitioner had the opportunity to raise them previously but did not do so properly. Although it is clear in hindsight that these claims were available to petitioner, it is not clear that the district court was sufficiently alerted to the presence of these additional grounds for relief. As the Second Circuit has observed,
Habeas corpus is a special proceeding to right wrongs, not a routine procedure to search for them . . . . With respect to this same problem, Justice Jackson once observed that "he who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search."