The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
By notice of motion dated July 21, 2003, petitioner in this habeas
corpus proceeding, brought pursuant to 28 U.S.C. § 2254, seeks leave
to file an amended petition. For the reasons set forth below, the motion
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
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
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
(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).
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):
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
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 ...