United States District Court, S.D. New York
April 4, 2005.
MARCUS BROWN, Petitioner,
DALE ARTUS, SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE.
Marcus Brown ("Brown"), proceeding pro se, seeks a stay of
his petition for a writ of habeas corpus so that he may exhaust
his state remedies with respect to: (1) a claim of ineffective
assistance of trial counsel, brought pursuant to New York
Criminal Procedure Law § 440.10, and (2) a claim of ineffective
assistance of appellate counsel, which he intends to pursue in
state court through an application for a writ of error coram
nobis. The respondent has not submitted any writing to the Court
in opposition to Brown's application.
On March 5, 2001, Brown was convicted for assault in the first
degree, criminal possession of a weapon in the second degree and
two counts of criminal possession of a weapon in the third degree
in New York State Supreme Court, New York County. Petitioner was sentenced as a persistent violent felony offender to concurrent
indeterminate terms of imprisonment of twenty years to life on
each count. On October 8, 2002, the Appellate Division, First
Department, affirmed petitioner's conviction unanimously, see
People v. Brown, 298 A.D.2d 176, 748 N.Y.S.2d 244 (App.Div.
1st Dep't 2002); the New York Court of Appeals denied
petitioner leave to appeal on December 20, 2002, see People v.
Brown, 99 N.Y.2d 556, 754 N.Y.S.2d 208 (2002).
Thereafter, on February 13, 2004, Brown petitioned the court
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
asserting: (i) the trial court violated his rights under the
Sixth and Fourteenth Amendments to the United States Constitution
when it: (a) limited trial counsel's cross examination of one of
the victims of the crimes for which petitioner was convicted
about a pending case and prior drug conviction; (b) limited trial
counsel's questioning of a prosecution witness about the details
of the witness's drug conviction; (c) sustained an objection by
the prosecution to testimony by the petitioner concerning two
individuals, including one of the victims; and (d) instructed the
jury to disregard petitioner's testimony that he faced a life
sentence; (ii) the trial court erred when it declined to instruct
the jury that it could consider a justification defense to the
charge of second degree criminal possession of a weapon; (iii)
the trial court failed to provide a "meaningful response" to a
query from the jury concerning the first degree assault charge,
thereby depriving petitioner of his constitutional rights under
the Sixth and Fourteenth Amendments; and (iv) the prosecutor
Brown states that he "is prepared to present" his ineffective
assistance of counsel claims to the relevant state courts. In
addition, Brown states that "[t]he delay in presenting this
request is because petitioner was confined to his cell for a
period of time and experienced difficulties in obtaining the necessary Legal Assistance to litigate his claims."
The necessity for a stay of a habeas corpus petition arises
where, inter alia, the petition contains both exhausted and
unexhausted claims and an "outright dismissal [of the petition]
could jeopardize the timeliness of a collateral attack" under the
one-year limitations period set forth in 28 U.S.C. § 2244(d).
Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert.
denied, 534 U.S. 1015, 122 S. Ct. 506 (2001). In this case, the
petition, as it stands, contains only exhausted claims.
Therefore, the Court must determine whether an amendment of the
petition to add the proposed new claims is warranted.*fn1
Rule 15 of the Federal Rules of Civil Procedure ("Rule 15")
governs motions to amend a petition for a writ of habeas corpus.
See Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts; Fed.R.Civ.P. 81(a)(2);
Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); Fama v.
Comm'r of Correctional Servs., 69 F. Supp. 2d 388, 393 (E.D.N.Y.
1999). Rule 15 provides that "[a] party may amend the party's
pleading once as a matter of course at any time before a
responsive pleading is served. . . . Otherwise a party may amend
the party's pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a).
In this case, a responsive pleading was filed in November 2004.
Consequently, since the respondent has not provided "written
consent" to an amendment of the petition, "leave of court" is required. Furthermore, where, as here, the statute of
limitations for the underlying action has run, Rule 15(c) governs
a motion to amend. See Fed.R.Civ.P. 15(c); Fama v. Comm'r
of Correctional Servs., 235 F.3d 804, 815 (2d Cir. 2000). That
section provides, in pertinent part: "An amendment of a pleading
relates back to the date of the original pleading when . . . (2)
the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading." Fed.R.Civ.P. 15(c).
The standard for determining whether a claim arises out of the
same conduct or occurrence "is whether the original complaint
gave the defendant fair notice of the newly alleged claims."
Fama, 235 F.3d at 815.
Brown has moved to amend his petition after the one-year
statute of limitations on his habeas corpus petition has run;
therefore, he is required to show that his petition, as amended,
relates back to his original petition, in accordance with
Fed.R.Civ.P. 15(c). In Fama, the Second Circuit did not provide
guidance for conducting an inquiry into whether an original
complaint gave a defendant fair notice of newly alleged claims.
See Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at *9
(S.D.N.Y. July 13, 2001) (citing Fama, 235 F.3d at 815).
Consequently, for the sake of procedural simplicity, courts have
proceeded by assuming arguendo that a proposed amendment would
relate back to a petitioner's original application and, thus,
that amendment is permissible. See, e.g., Newton, 2001 WL
799846, at *9; Mungin v. United States, No. 01 Civ. 5826, 2002
WL 109609, at *1 (S.D.N.Y. Jan. 25, 2002).
Here, the absence of guidance on this matter notwithstanding,
the Court finds that Brown's original habeas corpus petition gave
respondent fair notice of the ineffective assistance of counsel
claims Brown now proposes to raise. As stated earlier, Brown's
original petition asserted that errors on the part of the trial court violated his
constitutional rights. It is reasonable to conclude that claims
concerning the adequacy of the assistance rendered by counsel,
both at trial and on appeal, arise out of those alleged errors
and, consequently, that respondent received fair notice of the
newly presented claims. Therefore, the Court finds that
petitioner's new claims relate back to his original petition for
a writ of habeas corpus. Accordingly, petitioner's motion to
amend his petition to add these claims should be granted. In the
event that the motion to amend is granted, the adjudication of
the claims presented in the original petition should be stayed in
order to allow petitioner to exhaust his remedies in state court.
In addition, petitioner should be directed to initiate state
proceedings in connection with his new claims within thirty days
and return to this court within thirty days after the conclusion
of those proceedings. See Zarvela, 254 F.3d at 381.
For the reasons set forth above, I recommend that petitioner's
motion to amend his habeas corpus petition and his application
for a stay of this proceeding be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Denise L. Cote,
500 Pearl Street, Room 1040, New York, New York, 10007, and to
the chambers of the undersigned, 40 Centre Street, Room 540, New
York, New York, 10007. Any requests for an extension of time for
filing objections must be directed to Judge Cote. FAILURE TO FILE
OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn,
474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049,
1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d
Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.