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SHAKUR v. SPITZER

October 17, 2005.

RAHIM ASH SHAKUR, Petitioner,
v.
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

Pro Se

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.

  BACKGROUND

  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 identification.

  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.

  DISCUSSION

  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 ...


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