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
MEMORANDUM OPINION AND ORDER
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.
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
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
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.
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
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.
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
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.