The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
Petitioner, Karl McCalla ("McCalla"), filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in Monroe County Court. The parties
have consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 30, 1995, Officer Frascati of the Rochester Police
Department received a tip at about 8 p.m. from a confidential
informant about a gold-colored minivan that allegedly contained
drugs. Officer Frascati notified Officers Holmsten and Jeroy who
located a vehicle matching that description parked on the corner
of Lakeview Park and Dewey Avenue in the City of Rochester.
Officers Holmsten and Jeroy approached the minivan and activated
the overhead flashing lights on their patrol car. When they were
about ten to fifteen feet away, still in their patrol car, the
gold minivan suddenly started backing up. Officer Holmsten
observed a man whom he later learned was McCalla in the driver's
seat of the minivan. S.29-31, 43-44.*fn1 Officers Holmsten and Jeroy, along with Officer Frascati in a
separate car, gave chase to the minivan, which continued backing
up until it reached the intersection of Lakeview Park and
Pierpont Street. At that point it started traveling in a forward
direction. The officers pursued the minivan as it passed through
several stop signs without stopping or slowing down. When the
minivan was in the vicinity of Raines Park, Officer Holmsten
observed, from a distance of about fifty feet, a fairly small,
semi-reflective, plastic-wrapped object being thrown from the
driver's side of the minivan. However, Officer Holmsten did not
see the object land. S.32-34, 52.
About three hundred feet further, the minivan attempted to
negotiate a left-hand turn and ended up on the curb, at which
point McCalla was apprehended. Approximately ten minutes later,
Officer Holmsten returned to the area around Raines Park where he
had seen the plastic-wrapped object thrown from the vehicle. He
noticed several citizens waving their arms to flag him down. One
of these individuals produced a plastic bag out of a wooden
basket which appeared to be the same object that Officer Holmsten
had seen tossed from the minivan. The witnesses related to
Officer Holmsten that they had seen people in vehicles and on
bicycles driving slowly through the area, looking on the ground.
The witnesses refused to give their names to Officer Holmsten
because they did not want to get involved. S.35, 56-58.
Officer Holmsten retained possession of the plastic bag, which
was field-tested at the scene and found to be positive for the
presence of cocaine. Officer Holmsten brought the bag to the
Public Safety Building and gave it to Officer Feor. It was out of
Officer Holmsten's sight for about a minute, and then he turned
the bag over to the Property Clerk for storage. S.37-39.
Once at the Public Safety Building, McCalla was interviewed by
Officers Feor and Frascati, who showed him the plastic bag
recovered at the scene. McCalla said nothing in response. Officer Feor then read him his Miranda warnings from a rights card.
McCalla agreed to waive his rights and speak to Officer Feor.
Officer Feor testified that he neither threatened McCalla, nor
promised him lenity in return for talking with him. Officer Feor
indicated that McCalla told him that he had a twelfth-grade
education. Officer Feor reduced the information received from
McCalla into a narrative statement, which McCalla read aloud and
then signed. S.7-10, 13-14.
Given the People's failure to call Officer Frascati, defense
counsel challenged the reliability and sufficiency of the
information available concerning the presence of drugs in
McCalla's vehicle. In a ruling issued from the bench, Monroe
County Court Judge Charles T. Maloy rejected defense counsel's
argument that McCalla was stopped without cause and that the
police acted illegally in activating their emergency lights as
they proceeded down the street on which McCalla was parked. Judge
Maloy held that whether Officer Frascati had a confidential
informant was "immaterial," since sufficient probable cause to
stop arose when McCalla took off in reverse at a considerable
rate of speed, committed several traffic infractions, and threw
the bag out the window. S.70-71, 73. Consequently, no
Darden*fn2 hearing was required. Judge Maloy observed,
however, that if the police had stopped McCalla while he was just
sitting parked in his vehicle, "all would have to have been
brought [sic] at a hearing with Frascati." S.72. Judge Maloy held
McCalla's post-arrest statement to be admissible at trial.
McCalla was tried before a jury in Monroe County Court. Officer
Frascati did not testify at trial. McCalla did not testify in his
own behalf, and his statement to the police was introduced into evidence.*fn3 A chemist from the Monroe County Public Safety
Laboratory testified that the bag tossed from the minivan window
contained 3.7 ounces of cocaine. T.361. At the close of proofs,
defense counsel requested a missing witness charge regarding
Officer Frascati, and the People opposed on the basis that any
testimony from him would be cumulative. T.396-97. Judge Maloy
declined to charge the jury with a missing witness instruction.
McCalla was convicted on May 28, 1996, of one count of Second
Degree Criminal Possession of a Controlled Substance and one
count of Third Degree Criminal Possession of a Controlled
Substance. He was sentenced on July 10, 1996, to concurrent terms
of imprisonment, with the maximum sentence being 6 years to life.
Represented by the Monroe County Public Defender's Office,
McCalla appealed his conviction to the Appellate Division, Fourth
Department. The sole issue raised was the trial court's alleged
error in failing to give a missing witness charge. The Fourth
Department unanimously affirmed his conviction on May 7, 1999.
People v. McCalla, 261 A.D.2d 967 (App.Div. 4th Dept.
1999). The New York Court of Appeals denied leave to appeal on
November 30, 1999. People v. McCalla, 94 N.Y.2d 826 (N.Y.
On November 24, 2000, McCalla filed a federal habeas petition
(No. 00-CV-6589) pursuant to 28 U.S.C. § 2254 in the Western
District of New York. See Petitioner's Reply to Respondent's
Answer ("Pet'r Reply") at 2 (Docket #13). This petition contained
unexhausted claims and was dismissed without prejudice on January 25, 2001, because it
contained unexhausted claims. See 1/25/01 Order (Docket #3), in
McCalla v. Greiner, No. 00-CV-6589.
McCalla returned to state court to exhaust these claims and
filed an application for a writ of error coram nobis alleging
the ineffective assistance of appellate counsel on March 9, 2001.
This was summarily denied by the Appellate Division, Fourth
Department, on June 8, 2001. People v. McCalla, 284 A.D.2d 1022
(App.Div. 4th Dept. 2001). At the time McCalla's coram
nobis application was in state court, New York's procedural
rules provided that the Court of Appeals could not review a
denial by the Appellate Division of such an application, making
the claim fully exhausted at this juncture.
McCalla filed another federal habeas petition in this Court on
June 11, 2001. See Petition ("Pet.") (Docket #1). Finding that
this habeas petition also appeared to contain unexhausted claims,
the Court directed McCalla to file an amended petition raising
only those grounds for which state court remedies had been
exhausted, or to withdraw the entire petition in order to return
to state court to exhaust all of the claims. See 7/3/01 Order
(Docket #2). McCalla elected to pursue the first course of
action, and filed an amended petition on July 20, 2001. See
Amended Petition ("Amend. Pet.") (Docket #3).
McCalla's proposed amendments to his petition relate back to
the date the original petition was filed since the claims
presently asserted "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)(2). Thus, for statute of
limitations purposes, McCalla's amended petition relates back to
the filing date of the original habeas petition pursuant to Rule
15(c) of the Federal Rules of Civil Procedure. See Fama v.
Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000)
(Rule 15(c) applies to amendments to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254).
Here, McCalla signed his original petition in the presence of a
notary public on June 11, 2001. See Pet. at 7 (Docket #1).
Generally, when a petitioner is proceeding pro se, the "mailbox
rule" applies, and the date of filing is determined from the date
certified by the petitioner that the completed and signed
petition was given to prison officials for mailing. Houston v.
Lack, 487 U.S. 266, 270-71 (1988); accord, e.g., Noble v.
Kelly, 246 F.3d 93, 97 (2d Cir.) ("We conclude that the district
court properly extended the prison mailbox rule to petitions for
writs of habeas corpus.") (& citing cases for ...