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United States District Court, S.D. New York

April 4, 2005.

MARCUS BROWN, Petitioner,

The opinion of the court was delivered by: KEVIN FOX, Magistrate 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 committed misconduct.

  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.


  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. 1983).

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