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United States District Court, S.D. New York

February 18, 2004.

KAREEM SMITH, Petitioner, -against- MICHAEL McGINNIS, Respondent

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


Petitioner in this habeas corpus proceeding moves to amend his petition and for an evidentiary hearing. For the reasons set forth below, petitioner's motion to amend his petition is denied and his motion for an evidentiary hearing is granted in part and denied in part.

Petitioner was convicted after a jury trial of attempted murder in the second degree, in violation of New York Penal Law Sections 110.00 and 125.25. Petitioner's conviction arises out of an attempt to murder petitioner's acquaintance, Pauline Lawrence. On the night of the murder attempt, petitioner and Lawrence had smoked marijuana in Lawrence's apartment. According to the prosecution, after Lawrence rebuffed petitioner's sexual advances, petitioner feigned that he was leaving Lawrence's apartment and then begin attacking Lawrence with a hammer, striking her repeatedly in the head and body. Page 2

 A. Motion to Amend*fn1

  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. 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 Page 3 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.

  Petitioner's motion to amend seeks to add two claims. First, petitioner seeks to add a claim asserting that the decision of the Trial Court on petitioner's post-trial motion does not constitute an adequate and independent basis in state law for denying the claim because, according, to petitioner, the decision did not comply with state procedural requirements. These allegations do not state a claim. 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).

  Whether the Trial court complied with state procedural requirements cannot give rise to a violation of federal law that Page 4 is cognizable in a habeas corpus proceeding. Although I shall consider petitioner's arguments in this regard in assessing the underlying claims, they do not allege a violation of federal law.

  Petitioner's second proposed claim is really just an argument that respondent's failure to respond to certain arguments made in post-conviction proceedings in state court constitutes an admission that the arguments are meritorious. Again, petitioner is attempting to assert a state law claim in a habeas corpus proceeding. In effect, petitioner is making an argument concerning the effect of an alleged default in a state proceeding; the putative claim does not state any new alleged federal constitutional violation. The consequences of the putative default are a matter of state law that are not cognizable here.*fn2

 B. Motion for an Evidentiary Hearing

  Petitioner's motion for an evidentiary hearing relates to his claim that trial counsel failed to provide petitioner with effective assistance. An understanding of the argument requires a brief description of certain events that occurred at trial.

  Among the exhibits offered at trial was petitioner's blood-stained jacket. Although the prosecution's laboratory was able to determine that the blood stains were human blood, it could not determine the blood type and could not, therefore, confirm or deny that the stains were made by the victim's blood. Page 5 Petitioner first claims that a hearing is necessary to determine why counsel did not offer evidence concerning the lab report and the prosecution's inability to connect the blood stains to the victim.

  The second aspect of petitioner's motion for a hearing relates to his alibi defense. Although counsel served an appropriate alibi notice, the only witness to testify to petitioner's alibi was petitioner himself. Although it is not entirely clear, it appears that counsel had contacted a second alibi witness but that this second witness failed to appear in court before the commencement of closing arguments.

  The first aspect of petitioner's motion is easily dispatched. The lab report in issue was neutral; it neither inculpated nor exculpated petitioner. Given its inherently ambiguous nature, counsel's failure to offer evidence concerning the report was could not have prejudiced petitioner.

  The second aspect of petitioner's argument is more troubling. Petitioner's sole defense to the charges against him was his contention that he was not present when the crime was committed. Accordingly, the presence of disinterested witness (or witnesses less interested than petitioner) was a matter of clear importance at trial, and the failure to offer alibi witness in such a circumstance may constitute ineffective assistance. Noble v. Kelly, 89 F. Supp.2d 443, 462-63 (S.D.N.Y. 2000),aff'd Page 6 on other grounds, 246 F.3d 93 (2d Cir. 2001).*fn3 Given the record currently before me, I cannot conclude that inquiry concerning the steps taken to secure the presence of the alibi witnesses would necessarily be fruitless.

 C. Conclusion

  Accordingly, petitioner's motion to amend his petition is denied and petitioner's motion for an evidentiary hearing is also denied except to the extent that petitioner's claim of ineffective assistance is based on his counsel failure to call alibi witnesses, and to that limited extent, the motion is granted.

  Since I conclude that a hearing is necessary, counsel will be appointed for petitioner. Rule 8(c), Rules Governing Section 2254 Cases in the United States District Court. A scheduling conference will be held after counsel is appointed.


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