The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This habeas corpus proceeding was referred to me for a Report
and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C)
and Rule 72.1(a) of the Local Civil Rules of the Southern
District of New York. Petitioner, a New York State prisoner,
seeks habeas relief pursuant to 28 U.S.C. § 2254. Currently
before the Court is Petitioner's motion to amend his Petition.
Petitioner Rahim Ash Shakur is incarcerated at Elmira
Correctional Facility in Chemung County, New York, pursuant to a
conviction upon a guilty plea on July 7, 1995, for two counts of
Robbery in the First Degree (N.Y. Penal Law § 160.15(4)) and one
count of Robbery in the Second Degree (N.Y. Penal Law §
160.10(1)). Petitioner was sentenced as a persistent violent
felony offender to concurrent, indeterminate prison terms of from ten years to life
on each count.
In his Petition, which was filed on August 9, 2004, Petitioner
claims that he was denied due process (1) when Petitioner's
request to call the victim to testify at his Wade Hearing was
denied; and (2) because the trial court erred in its ruling that
an eyewitness had an independent source for an in-court
The Response to the Petition was filed on April 6, 2005, and
Petitioner's Traverse to the Response was filed on June 1, 2005.
On August 29, 2005, this Court issued an Order granting
Petitioner's request for an extension of time, until September
26, 2005, in which to file an amended petition. On October 3,
2005, the Court received a request from Petitioner, postmarked
September 26, 2005, seeking leave to file a Supplemental and
Amended Petition, and enclosing a Proposed Supplemental and
Amended Petition (the "Proposed Amended Petition").
In the Proposed Amended Petition, Petitioner requests that
Caroline B. Woughter, Acting Superintendent of the Elmira
Correctional Facility, be named Respondent in place of the
currently named Respondents, Eliot Spitzer and Michael Zenk. The
only new claim raised in the Proposed Amended Petition contends
that Petitioner was denied due process when the State court
"deliberately destroyed the hearing minutes of the independent source hearing after the state court affirmed Petitioner's
conviction." (See Proposed Amended Petition, Sept. 22, 2005, ¶
9.) This new claim appears to be based on a footnote in
Respondent's Memorandum of Law in Opposition which states that
"The minutes of the July 7, 1995 independent source hearing could
not be located in the records of the New York County District
Attorney . . . The summary of the [hearing] has been taken from
the District Attorney's Appellate Division brief." (Respondent's
Memorandum of Law in Opposition to Petition for a Writ of Habeas
Corpus ("Resp. Mem. of Law"), Apr. 6, 2005, at 4 n. 5.)
Respondent does not oppose Petitioner's request to substitute
Carline B. Woughter as Respondent, but does oppose Petitioner's
request to file an amended pleading.
Because the Court has not yet ruled on the merits of the
original Petition, Petitioner's motion to amend is governed by
Federal Rule of Civil Procedure 15(a). See Littlejohn v.
Artuz, 271 F.3d 360, 363 (2d Cir. 2001). Rule 15 permits a
litigant to amend the pleadings once as a matter of right before
a responsive pleading has been served. See Fed.R.Civ.P.
15(a). Where a responsive pleading has been served, as is the
case here, the Rule directs that courts "shall" grant leave to
amend "when justice so requires." Id. While leave to amend
generally should be freely granted, it may be denied where there
is good reason to do so, such as undue delay, bad faith, dilatory tactics, undue prejudice to
the party to be served with the proposed pleading, or futility.
See Forman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230
(1962); Jones v. New York State Div. of Military & Naval
Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (district court may deny
leave to amend on grounds of futility).
Petitioner here moves to amend his Petition in order to add a
claim that the State court violated his due process rights when
it "deliberately destroyed the hearing minutes of the independent
source hearing after the state court affirmed Petitioner's
conviction." (See Proposed Amended Petition, ¶ 9.)
"A proposed amendment to a pleading [is] futile if it could not
withstand a motion to dismiss pursuant to Rule 12(b) (6)."
Oneida Indian Nation v. City of Sherrill, 337 F.3d 139
, 168 (2d
Cir. 2003), rev'd on other grounds, 125 S. Ct. 1478
see also Lucente v. Int'l Business Machines Corp.,
310 F.3d 243
, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd.
of Zoning Appeals, 282 F.3d 83
, 88 (2d Cir. 2002)) (A proposed
amendment is futile "if the proposed claim could not withstand a
motion to dismiss for failure to state a claim upon which relief
may be granted."); Health-Chem Corp. v. Baker, 915 F.2d 805
810 (2d Cir. 1990) (where there is no merit to a proposed
amendment, leave to amend should be denied). The Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
does not give a habeas corpus petitioner an unconditional right
to a state court transcript for the purpose of pursuing his
habeas petition. See 28 U.S.C. § 2254. Under AEDPA, if a habeas
petitioner, who challenges the sufficiency of the evidence in a
State court proceeding, is unable, because of indigency or other
reason, to produce the part of the record pertinent to a
determination of the sufficiency of the evidence,
the State shall produce such part of the record and
the Federal Court shall direct the state to do so by
order directed to the appropriate State official. If
the State cannot provide such pertinent part of the
record, then the court shall determine under the
existing facts and circumstances what weight shall be
given to the State court's factual determinations.
Id. § 2254(f). Rule 5(c) of the Rules Governing Section 2254
Cases further requires that the answer to a habeas petition "must
indicate what transcripts are available . . . and the respondent
must attach to the answer parts of the transcript that the
respondent considers relevant." If a transcript is unavailable,
Rule 5 permits the respondent to "submit a narrative summary of
the evidence." Id.
To the extent that Petitioner is claiming a right to have a
transcript of the independent source hearing provided to him
under § 2254(f), and that the Respondent's inability to produce
the transcript has violated his due process rights, the amendment
would be futile. As set forth above, § 2254(f) "places the
initial burden on the petitioner to produce the State court record.
However, if the petitioner is unable to do so (due to indigency
or other factors), subsection (f) shifts this burden to the
State." Breighner v. Chesney, 301 F. Supp. 2d 354, 365-66 (M.D.
Pa. 2004). If the transcript cannot be produced, the respondent
may submit a narrative summary. See Rule 5(c) of the Rules
Governing Section 2254 Cases. The court must then determine
"under the existing facts and circumstances what weight shall be
given to the State court's factual determinations."
28 U.S.C. § 2254(f). Thus, this Court can properly review Petitioner's habeas
petition without reviewing the independent source hearing
minutes. See Simental v. Matrisciano, 363 F.3d 607, 612 (7th
Cir. 2004) ("While review of a state court transcript is
occasionally necessary in habeas cases, it is certainly not
required and ...