United States District Court, S.D. New York
October 17, 2005.
RAHIM ASH SHAKUR, Petitioner,
ELIOT SPITZER, Attorney General, New York State, and MICHAEL ZENK, Warden, Metropolitan Detention Center, Respondents.
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 (2005);
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 is, in fact, quite rare."). Clearly, nothing in §
2254(f) gives a petitioner the right to a transcript, nor does it
require the district court to review such a transcript.
Therefore, § 2254(f) cannot serve as an independent ground for
habeas relief based on the State's inability to produce a
Further, Respondent has included a summary of the independent
source hearing in its submission to the Court, which was drawn
from the District Attorney's Appellate Division brief. (See
Resp. Mem. of Law, at 4 n. 5) The District Attorney's Appellate
Division brief also provided an extensive summary of the
independent source hearing. (See Brief for Respondent, July
1999, at 5-8.) Thus, Respondent has met its obligations under
Rule 5 of the Rules Governing Section 2254 Cases of providing a summary of the state
proceeding for which it is unable to produce a transcript. See
Simental, 363 F.3d at 612 (district court did not abuse its
discretion under Rule 5 of § 2254 by resolving habeas corpus
petition without reviewing the full state transcript); Stevenson
v. Strack, No. 96 Civ. 8429 (DC), 1999 WL 294805, at *1 n. 1
(S.D.N.Y. May 11, 1999) (denying habeas corpus petition on the
merits, where neither party submitted trial transcript and
respondent represented that it was unable to obtain the
transcript; based on Rule 5, the court permitted the use of a
narrative summary of the evidence).
Finally, the only possible constitutional claim for habeas
relief Petitioner could assert in relation to the transcript is
that his due process rights were violated when he was denied a
fair appeal because of prejudice resulting from the missing
transcript. See Godfrey v. Irvin, 871 F.Supp. 577, 584
(W.D.N.Y. 1994); see also United States v. LaVallee,
428 F.2d 165, 167 (2d Cir. 1970) (where habeas petition is based on denial
of a transcript, the question is "whether the transcript was an
instrument needed to vindicate legal rights"). However,
Petitioner is not claiming that he was denied access to the
independent source hearing transcript for purposes of his state
appeal. In fact, Petitioner's appellate counsel clearly obtained
the independent source hearing minutes from the State, as
evidenced by Petitioner's Appellate Division brief. Petitioner's
Appellate Division brief makes numerous references to the minutes
of the independent source hearing and includes a detailed summary
of the hearing. (See Brief of Defendant-Appellant, Feb. 1999,
at 8-11.) The brief even includes a footnote clarifying that, "Numbers in the parentheses refer to
the minutes of the independent source hearing and the plea which
are bound together and paginated sequentially." (Id. at 3 n.
1.) Thus, appellate counsel's acquisition of the independent
source hearing minutes indicates that Petitioner was not denied
the hearing transcript by the state court during Petitioner's
appeal of his conviction. See Malsh v. Hanslmaier, No. 94
Civ. 687, 1996 WL 204347, at *3 (N.D.N.Y. Apr. 11, 1996) (noting
that the acquisition of the petitioner's suppression hearing
transcript by appellate counsel made it "far from clear" that
petitioner's constitutional right to a trial transcript to
prosecute his appeal was violated). Because Petitioner had access
to the independent source hearing minutes for his direct appeal,
Petitioner's new allegation, that the transcript was destroyed by
the State after affirming Petitioner's conviction, does not state
a due process claim that would merit habeas relief. Moreover,
Petitioner never exhausted such a claim in the state courts and
could not do so any longer. The claim would therefore be
Thus, it follows that it would be futile to grant Petitioner
leave to amend his Petition by adding the proposed claim.
Accordingly, Petitioner's request to substitute Carline B.
Woughter as Respondent is granted. Petitioner's request to amend
his petition by adding additional claims is denied.
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