The opinion of the court was delivered by: Andrew J. Peck, United States Chief Magistrate Judge:
REPORT AND RECOMMENDATION
To the Honorable Kimba M. Wood, United States District Judge:
Petitioner Pablo Fernandez, then pro se, brought this habeas petition on August 14, 2000. (Dkt. No. 2: Pet.) After a long procedural history (discussed below), Fernandez's new pro bono counsel seeks to stay the petition's exhausted claims and dismiss without prejudice his unexhausted Brady v. Maryland claim pending exhaustion of the claims he has raised and are pending in state court under C.P.L. § 440. (Dkt. No. 38: Motion; see also Dkt. No. 39: Fernandez Stay Br.; Dkt. No. 45: Fernandez Reply Stay Br.; Dkt. Nos. 40 & 46: Cromartie Affs.) The State opposes the motion. (Dkt. No. 43: State Br.)
For the reasons set forth below, the motion is GRANTED.
Prior Federal Court Proceedings
Petitioner Fernandez's pro se habeas petition (Dkt. No. 2), dated August 14, 2000, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his June 21, 1996 conviction after a jury trial in Supreme Court, New York County, of second degree murder and sentence of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-6.) See also People v. Fernandez, 249 A.D.2d 3, 3, 670 N.Y.S.2d 840, 841 (1st Dep't), appeal denied, 92 N.Y.2d 897, 680 N.Y.S.2d 60 (1998).
Fernandez's petition raises seven habeas grounds: (1) the trial court's reasonable doubt jury charge shifted the burden of proof (Pet. ¶ 12, Point I); (2) a Brady violation (id. Point II); (3) prosecutorial misconduct (id. Point III); (4) prejudicial comments by the trial judge (id. Point IV); (5) admission of hearsay (id. Point V); (6) denial of the right to present a defense (id. Point VI); and (7) ineffective assistance of appellate counsel in failing to include issues in the application for leave to appeal to the New York Court of Appeals (id. Point VII).
The State moved to dismiss Fernandez's habeas petition as barred by the AEDPA's one year statute of limitations. (See Dkt. Nos. 11, 13, 17.) Judge Wood referred the case to me, and on May 15, 2001, I issued a Report and Recommendation that the petition be dismissed as time barred, holding that the "prison mailbox rule" should not apply to determine when an inmate filed a coram nobis petition with the Appellate Division. Fernandez v. Artuz, 00 Civ. 7601, 2001 WL 506889 (S.D.N.Y. May 15, 2001) (Peck, M.J.).
On November 20, 2001, Judge Wood disagreed, holding that the prison mailbox rule should apply to determine when a coram nobis petition was filed for purposes of AEDPA tolling, and therefore denied the State's motion to dismiss. Fernandez v. Artuz, 175 F. Supp. 2d 682 (S.D.N.Y. 2001) (Wood, D.J.).
The State was granted leave to file an interlocutory appeal to the Second Circuit, which affirmed Judge Wood's decision on March 17, 2005. Fernandez v. Artuz, 402 F.3d 111 (2d Cir. 2005). The State applied for certiorari to the Supreme Court, which denied certiorari on October 3, 2005. Haponik v. Fernandez, 126 S. Ct. 79 (2005) (denying certiorari).
At that point, before the State's response to Fernandez's petition was due, Fernandez's new pro bono counsel moved to stay the exhausted claims and dismiss the unexhausted Brady claim to allow exhaustion of that claim (and potentially other claims) in state court. (See page 2 above.) The Brady Claim in the Petition
Fernandez's counsel seeks dismissal without prejudice of a single claim in the petition, the second habeas claim, which raises a Brady claim. (Pet. ¶ 12 Point II.) The Brady claim currently in the petition is based on the prosecution's failure to disclose that Officer Melino was being investigated (and was arrested shortly after Fernandez's trial) for selling drugs in 1991 or 1992, before he became a police officer. (Pet. ¶ 12 Point II.) See People v. Fernandez, 249 A.D.2d 3, 3-7, 670 N.Y.S.2d 840, 841-44 (1st Dep't 1998). The Brady claim was raised before the trial judge (Leslie Crocker Snyder) via a C.P.L. § 330.30 motion, denied by her and by the First Department. Id.
In discussing the Brady claim in the pro se habeas petition, Fernandez referred to the importance of Officer Melino's testimony because of his role in connection with the witnesses' photographic and lineup identifications of Fernandez and Officer Melino's "debriefing" of all the trial witnesses against Fernandez. (Pet. ¶ 12, Point II, last paragraph.)*fn1
Fernandez Files a C.P.L. § 440 Motion in State Court While His Federal Habeas Petition is Pending
While Fernandez's habeas petition was pending in the Second Circuit, on April 22, 2003, his attorney David Samel (not his current federal court pro bono counsel) filed a C.P.L. § 440 motion in state court to vacate Fernandez's conviction based on, inter alia, newly discovered evidence. (Dkt. No. 40: Cromartie Aff. Ex. 1: Samel § 440 Aff.; see also Dkt. No. 39: Fernandez Stay Br. at 6.) The C.P.L. § 440 motion was supported by affidavits from, inter alia, two eyewitnesses who had identified Fernandez at trial as the shooter, recanting their trial testimony and stating that their identification of Fernandez was the product of Officer Melino's misconduct, and a third person, the second victim of the shooting, who had not been found by the police at the time of the trial and who stated that Fernandez was not the shooter. (Fernandez Stay Br. at 6; Cromartie Aff. Ex. 1: Samel Aff. at pp. 31-39 & Exs. B, C, D: Hickliff Rosario, George Rosario & Henry Gomez Affs.) Fernandez's C.P.L. § 440 motion also claims "that his right to due process was violated by P. O. Melino's coercion of witness testimony, illegally fabricating evidence and intentionally misleading at least two witnesses who identified Mr. Fernandz at trial." (Fernandez Stay Br. at 6, citing Samel Aff. at p. 34.)
On June 10, 2004, Justice Bruce Allen ordered a hearing to be held to determine the credibility of the Rosarios and Gomez. (Cromartie Aff. ¶ 3; Fernandez Stay Br. at 6.) That hearing did not conclude until November 10, 2005, but no decision has yet been rendered. (Dkt. No. 46: Cromartie 12/15/05 Aff. ¶ 5 & ...