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February 11, 2004.

HAROLD HALL, Petitioner, -against- CHARLES GRIENER, Superintendent, Respondent

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


By notice of motion dated July 21, 2003, petitioner in this habeas corpus proceeding, brought pursuant to 28 U.S.C. ยง 2254, seeks leave to file an amended petition. For the reasons set forth below, the motion is denied.

The petition in this matter currently asserts four claims: (1) insufficiency of the evidence; (2) prosecutorial misconduct in summation; (3) an unconstitutionally excessive sentence, and (4) "[l]egally insufficiency evidence [sic] that was false" (Petition at 6). Petitioner has not submitted a proposed amended petition with his motion, and it is, therefore, impossible to determine the precise nature of the amendment proposed by petitioner. Nevertheless, based on the affirmation and a Memorandum of Law *fn1 submitted by petitioner in connection Page 2 with his motion, it appears that he seeks to add claims based on (1) the prosecution's alleged failure to formally arrest and process him in connection with the offense that is the subject of the petition; (2) allegedly false and/or misleading testimony presented to the Grand Jury, and (3) the prosecution's securing a blood sample from petitioner in an illegal manner. With respect to petitioner's first proposed new claim, it appears that petitioner was in the custody of the New York City Department of Corrections for independent reasons when the criminal proceeding in issue was commenced, and that petitioner was "writted" out of the custody of the Department of Corrections for prosecution.

  Petitioner's motion to amend is governed by the Federal Rules of Civil Procedure. Fed.R.Civ.P. 81(a)(2). Rule 15 of the Federal Rules of Civil Procedure governs motions to amend the pleadings.

  Under Rule 15, leave to amend may be denied "if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd mem. 116 F.3d 465 (2d Cir. 1997). Accord American Home Assurance Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. Page 3 1997). A proposed amended pleading is futile if it would not withstand a motion to dismiss. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Although Fed.R.Civ.P. 15(a) provides that leave to amend should be given freely when justice so requires, where, as here, there is no merit in the proposed amendments, leave to amend should be denied."); Mina Inv. Holdings. Ltd, v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N.Y. 1999); Parker v. Sony Pictures Entertainment, Inc., 19 F. Supp.2d 141, 156 (S.D.N.Y. 1998), aff'd in pertinent part, vacated in part on other grounds sub nom., Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000); Yaba v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996); Prudential Ins. Co. v. BMC Indus. Inc. 655 F. Supp. 710, 711 (S.D.N.Y. 1987) (Although leave to amend should be freely given, "it is inappropriate to grant leave when the amendment would not survive a motion to dismiss."). See generally Dluhos v. Floating & Abandoned Vessel known as "New York", 162 F.3d 63, 69-70 (2d Cir. 1998).

  Judged by this standard, petitioner's proposed amendment is futile.

  To the extent petitioner seeks to assert a claim based on the alleged failure of state authorities to formally arrest and process him, he has failed to allege a violation of any federal right. A fundamental aspect of habeas corpus review is that only violations of federal law are cognizable in a federal habeas corpus proceeding; a violation of state law provides no basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 Page 4 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (non-constitutional claims not cognizable in federal habeas corpus proceedings); Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (same); Ashby v. Senkowski, 269 F. Supp.2d 109, 114 (E.D.N.Y. 2003) (same); Bynum v. Duncan, 02 Civ. 2124 (RWS), 2003 WL 296563 at *7 (S.D.N.Y. Feb. 12, 2003) (same).

  Petitioner's claim based on the alleged failure of state officials to arrest him formally does not assert even a colorable violation of a federal right. There is simply no provision of the United States Constitution or other federal law that requires that state officials arrest an individual before commencing criminal proceedings against him or her. To the extent that petitioner's proposed claim can be read as asserting violations of New York's Criminal Procedure Law, it fails to allege a violation of federal law and is not, therefore, cognizable.

  To the extent petitioner seeks to add a claim asserting irregularities in the Grand Jury, the claim is not cognizable where, as here, petitioner has been convicted by a trial jury after a trial. The trial jury's guilty verdict necessarily renders any irregularity before the Grand Jury harmless. United States v. Mechanik, 475 U.S. 66, 68 (1986); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Barnes v. Giambruno, 01 Civ. 8965 (LBS), 2002 WL 850020 at *7 (S.D.N.Y. May 2, 2002). Page 5

  In addition, even if I construe the proposed claim as asserting the knowing use by the prosecutor of perjured testimony in the grand jury, it still fails to state a claim. Although it has been held that a federal prosecutor's knowing use of perjured material testimony in the Grand Jury can constitute a Due Process violation, see United States v. Mangual-Corchado, 139 F.3d 34, 41 (1st Cir. 1998); United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990); United States v. Bracy, 566 F.2d 649, 654 (9th Cir. 1977); United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), the allegedly perjurious testimony petitioner asserts here relates to the date of his arrest. Petitioner was convicted of rape and robbery; the date of his arrest is not an element of either offense and is immaterial.

  Finally, to the extent petitioner attempts to raise a claim concerning the prosecution's drawing a blood sample from him without his consent, a warrant or subpoena, he has not alleged any of the aggravating circumstances necessary to constitute a Due Process violation. See generally Rochin v. California, 342 U.S. 165, 169 (1952). Thus, he has alleged, at most, a Fourth Amendment violation. Schmerber v. California, 384 U.S. 757 (1966).

  Fourth Amendment claims can be reviewed in habeas corpus proceedings only under very limited circumstances. As explained by the Honorable Richard M. Berman, United States District Judge, in Baker v. Bennett, 235 F. Supp.2d 298, 306-07 (S.D.N.Y. 2002): Page 6

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court established that "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. 3037; Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). A federal court "ha[s] no authority to review the state record and grant the writ simply because [it] disagree [s] with the result reached by the state courts" on a Fourth Amendment issue. Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977); see also Torres v. Irvin, 33 F. Supp.2d 257, 264 (S.D.N.Y. 1998) ("A petition for a writ of habeas corpus must be dismissed where it seeks simply to relitigate a Fourth Amendment claim."). The only way a federal court can review such a claim is where "the state has provided no corrective procedures at all," or the state has provided a corrective mechanism, but the defendant is precluded from using that mechanism "because of an unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citing Gates, 568 F.2d at 839); Torres, 33 F. Supp.2d at 264.
See also Valtin v. Hollins, 248 F. Supp.2d 311, 316-17 (S.D.N.Y. 2003); Edwards v. Fischer, 01 Civ. 9397 (LAK)(THK), 2002 WL 31833237 at *2 (S.D.N.Y. Dec. 16, 2002); Ouinones v. Keane, 97 Civ. 3173 (KTD), 1998 WL 851583 at *4 (S.D.N.Y. Dec. 7, 1998); Torres v. Irvin, 33 F. Supp.2d 257, 264 (S.D.N.Y. 1998).

  "An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim." Valtin v. Hollins, supra, 248 F. Supp.2d at 317, citing Papile v. Hernandez, 697 F. Supp. 626, 633 (E.D.N.Y. 1988). The Court of Appeals for the Second Circuit has held that New York's procedure for reviewing Fourth Amendment claims is adequate. See Page 7 Capellan v. Riley, 975 F.2d 67, 70 n.l (2d Cir. 1992). See also Edwards v. Fischer, supra, 2002 WL 31833237 at *2; Manning v. Strack, CV-99-3874 (RR), 2002 WL 31780175 at *4 (E.D.N.Y. Oct. 11, 2002); Crawford v. Artuz, 165 F. Supp.2d 627, 637 (S.D.N.Y. 2001). Thus, in order for a ...

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