The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Anthony Youngblood ("Youngblood"), 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 on attempted murder and several lesser charges. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from the shooting and attempted robbery of Chester Dortch ("Dortch") by petitioner. At about 8:30 p.m. on March 16, 2000, Officer Brian Cannon responded to the scene of a shooting at 525 Remington Street where he found Dortch, bleeding from the abdomen and legs. Dortch described his assailant as a black male wearing a red coat who had taken off running, heading east through backyards. Other eyewitnesses to the shooting described the gunman as about 5'9"-tall and 160 pounds, wearing a red ski jacket and dark pants. These witnesses confirmed his direction of travel and stated that he was still carrying the gun.
After setting up a perimeter around the crime scene, Officer Cannon and Officers Anthony Bongiovanni and Patrick Carney, along with a trained tracking dog, began searching for the suspect. Across the street from 525 Remington, they found a set of footprints in the snow spaced widely apart. They followed the tracks south to Lang Street and then through a parking lot to Joseph and Weaver Streets, where the tracks crossed with others near a phone booth at the corner. Since it was the middle of the a snowstorm, there were not many people out and about. However, the officers spied a man who was standing in a doorway and questioned him. He stated that he had just seen someone in a red coat use the phone and then head west on Weaver Street. The officers headed in that direction and the tracking dog picked up the trail again; it led to 43 Weaver Street, specifically, the area underneath the porch. The officers observed a set of footprints leading into and out of the space behind a lattice that had been removed. There was no one under the porch, however.
The officers continued following the tracks through backyards to Farbridge Street, where one officer saw a man running eastbound; the man refused to halt when the officer called out to him. The officers split up to give chase and ultimately apprehended the man, a black male about 5'11"-tall, later identified as Youngblood. As Youngblood was being handcuffed, Officer Charles Bonafede arrived on the scene. Recognizing Youngblood from his beat on Parsells Avenue, Officer Bonafede stuck his head in the window of the patrol car where Youngblood had been placed and asked, "Hey Juke [Youngblood's nickname], how's it going? You need anything? You all set? It's been a long time since the Parsells [Avenue] days." Youngblood announced that he had been running from the police only because he had been on his way to "buy a bag of weed" and he was on parole. Without prompting, Youngblood then asked whether the police were looking for his jacket; he said that it was in the bushes of a green house near Remington and Farbridge Streets. Youngblood told them, "[T]here's nothing in it except my landlord's papers."
The police searched in the area where Youngblood indicated and discovered a jacket with a prominent red stripe in the hedges of 318 Remington Street, the only green house in the vicinity. After searching the area underneath the porch at 43 Weaver Street, the officers recovered a gun which ballistics testing revealed to be same gun that was used to shoot Dortch.
Meanwhile, Dortch was brought to Rochester General Hospital for treatment of his gunshot wounds. He described his assailant as a "dude named Juke" to Investigator Randall Benjamin. A show-up identification procedure was conducted at the hospital, and Dortch positively identified Youngblood as the gunman.
Youngblood subsequently was transported to the Public Safety Building. When Investigators Joseph Dominick and Gary Galetta arrived, they informed him of his rights under the Miranda decision. Youngblood agreed to speak with them without an attorney present. He initially denied any involvement in the shooting on Remington Street. Youngblood then was informed that Dortch had identified him and that the police had developed independent evidence of a connection between the two men, namely, that Youngblood had called Dortch's home before the shooting and that Dortch had dated Youngblood's aunt.
After that, Youngblood agreed to tell the officers "what happened down there." He related having contacted Dortch in order to purchase some cocaine, which he did for $200. Upon opening the bag, Youngblood discovered that the contents smelled unfamiliar, so he demanded his money back. According to Youngblood, Dortch refused to make a refund. When Youngblood grabbed him, Dortch pulled out a gun and pointed it at Youngblood. Youngblood told the officers that he disarmed Dortch using a military manoeuver, pointed the gun at him, and demanded a refund. Dortch threw some currency on the ground, but when Youngblood discovered that it was less than the full purchase price, he became so angry that he shot Dortch. Youngblood related that when Dortch started to run away, he chased Dortch up onto the porch of a house and shot him several more times, mostly in the legs. Youngblood also told the police that he threw the gun under the porch of a house on Weaver Street and abandoned his jacket somewhere.
During a second round of questioning the next day, Youngblood admitted that he had brought the gun to the encounter between Dortch and him. He stated that he had acquired it from a person whom he knew as "Nose." Youngblood explained that he had received a page from Dortch, who proposed to meet Youngblood at the corner of Norton Street and Clinton Avenue in order to sell him cocaine. Because he believed the quality of the cocaine sold to him was suspect, Youngblood demanded a refund but Dortch refused. Dortch began to run, and Youngblood chased after him, shooting the gun. Youngblood refused to implicate the person who drove him to the meeting with Dortch. Youngblood also declined to provide a written statement memorializing any of his oral statements to the police.
A suppression hearing was held, at which Youngblood testified that the police "made up everything" they related regarding the issuance of the Miranda warnings and the interrogations. However, Youngblood admitted telling Officer Bonafede why he had been running. The court found that Youngblood knowingly and intelligently waived his rights and that his statements to Officer Bonafede were "spontaneously made and not the product of express questioning or its functional equivalent."
A few days before the trial court issued its decision on the suppression motion, defense counsel moved to be relieved from representing Youngblood. Counsel stated that a "rift" had developed between them. As evidence, he pointed to Youngblood's filing of pro se papers, an alleged disagreement between them regarding the use of an investigator, and an implied threat by Youngblood of a malpractice suit. Youngblood did not agree that there was any such rift and he denied having threatened to bring a lawsuit. He stated that he did not want new counsel, but that if counsel were to be relieved, he wanted to represent himself. The court denied defense counsel's application, and the case proceeded to trial.
At trial, Dortch denied selling cocaine to Youngblood, but he otherwise confirmed what the police observed and what Youngblood admitted to them. At about 8:15 p.m. on March 16, 2000, Dortch received a telephone call from Youngblood, whom he knew was "Juke." Youngblood asked to meet him at a convenience store at the corner of Norton Street and Clinton Avenue in order to arrange the purchase of marijuana. Dortch, who previously had dated Youngblood's aunt, agreed.
Upon nearing the location for the scheduled meeting, Dortch saw that Youngblood had someone with him in the car. Because Youngblood promised that he would meet him alone, Dortch continued on his way. Youngblood exited the car and asked where "the guy" with the marijuana was. Dortch replied that he had been unable to contact him and began to walk away. Youngblood followed him, and the two ended up on the porch of a house on Remington Street.
Youngblood then came out from under the porch with a gun, ordered Dortch to "give it up," and shot him in the leg. This prompted Dortch to toss about $400 onto the ground, but Youngblood shot him again, hitting him in the right arm. Dortch managed to run around the house and onto the porch of the house next door. While attempting to kick in the door, he turned to face Youngblood, who was on the sidewalk. Youngblood then shot him in the stomach. Dortch dove through a window and Youngblood ran off.
Dr. Jeff Landers, who operated on Dortch, explained that each of the four main gunshot wounds (one in each thigh, one in the knee and one in the stomach) could have caused death due to blood loss. The bullet in Dortch's stomach passed within one centimeter of the vena cava, the largest vein in the abdomen. According to Dr. Landers, most people who are shot there do not survive.
The defense called Gary Bradford ("Bradford") who testified that at about 8:45 p.m. on the night of March 16, 2000, he was in a convenience store on the corner of Cohlman and Remington Streets, chatting with Youngblood, whom he knew as "Juke Box." Youngblood told Bradford that he had just gotten out of prison and was looking for some "weed" for his sister. Bradford supplied him with some marijuana. Upon hearing police sirens they fled since they were both on parole. On cross-examination, Bradford admitted having signed a statement saying that he had sold Youngblood two "dime bags" of marijuana and that they actually had seen the police before hearing the sirens. However, at trial, Bradford stated that those things were not true.
The defense also called Mildred Scott ("Scott"), who described Youngblood as her godbrother's best friend. Scott stated that she had been with him since early that evening and drove him to a store on Cohlman Street sometime before 9:00 p.m. Scott saw him walk around the corner with "a guy with a red coat." While she waited for Youngblood, two police cars drove past. Not wanting to "be caught at a marijuana house or nothing like that," she drove away.
Submitted to the jury were the following counts as charged in the indictment: attempted murder in the first degree, robbery, assault, and criminal possession of a weapon. The court explained to the jury that it would define the crime of murder in the first degree, define "attempt to commit a crime," and then "put them together[.]" The court defined murder in the first degree to include a homicide in which the victim was killed by the defendant in the course of committing robbery in the first degree, which it also defined. See N.Y. Penal Law § 125.27(1)(vii). The court defined "attempt" as conduct which comes "dangerously close" or "very close" to effecting the intended objective and combined those concepts in a charge which instructed the jury to decide whether the defendant "intended to commit the crime of murder in the first degree and . . . engaged in conduct which tended to effect the commission of that crime." However, the court did not charge the jury on attempted robbery. T.797, 823-25.*fn1
During the course of their deliberations, the jury sent out a note asking whether it had to find Youngblood guilty of first degree robbery in order to convict him of attempted murder, or whether an "intended robbery" was sufficient. The prosecutor pointed out that under § 125.27(1)(a)(vii) of the Penal Law, murder in the first degree includes killing a non-participant during the course and in furtherance of a complete or attempted robbery, in any degree. The court agreed that it was "right from the statute," and instructed the jury, without objection, that an attempted robbery in the first degree would be sufficient to support a verdict of attempted murder in the first degree. T.836-43. The jury convicted Youngblood of all counts in the indictment except for the count charging first degree robbery. T.856-57. Youngblood was sentenced as a persistent felony offender and received concurrent sentences of twenty years to life on all of the convictions.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. People v. Youngblood, 294 A.D.2d 954, 742 N.Y.S.2d 762 (App. Div. 4th Dept. 2002). The New York Court of Appeals denied leave to appeal. People v. Youngblood, 98 N.Y.2d 704, 776 N.E.2d 12, 747 N.Y.S.2d 423 (N.Y. 2002). Youngblood submitted a number of collateral post-conviction application for relief, all of which were denied.
Youngblood filed a petition for federal habeas relief in this Court on October 27, 2003. See Docket #1. On February 12, 2004, Youngblood submitted a motion to have his petition held in abeyance while he returned to state court to exhaust certain claims. See Docket #11. The Court (Feldman, M.J.) granted the motion for a stay and directed Youngblood to submit a proposed amended petition. See Docket #16. In March 2004, Youngblood submitted an Amended Petition (Docket #17). He submitted a Supplemental Amendment of Petition (Docket #18) in April 2004. Youngblood submitted additional documents in further support of his amended claims to the Court on November 1, 2005. See Docket ##24-1, 24-2, 24-3, 24-4. The following documents appear to be Youngblood's proposed amendments to the original petition: Docket ##17, 18, 24-1, 24-2, 24-3 and 24-4. Respondent has submitted a supplemental answer and memorandum of law in opposition to these new pleadings. See Docket ##25-1, 25-2, 25-3. Youngblood filed a reply to respondent's pleadings on January 27, 2006. See Docket #26. As the matter is now fully briefed and ready for decision, the Court orders that the stay is hereby lifted. For the reasons set forth below, the petition is denied.
By statute, a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Rule 15 of the Federal Rules of Civil Procedure governs motions to amend petitions for habeas corpus. See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); Ching v. United States, 298 F.3d 174, 180-81 (2d Cir. 2002); Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 15(c)'s relation-back provision "governs the timeliness of a motion to amend submitted after AEDPA's statute of limitations has expired." Ching, 298 F.3d at 181. Arguably, most, if not all, of Youngblood's new claims do not relate back to the original petition because there is nothing in the original habeas corpus petition which would have given respondent fair notice of the newly alleged claims. If petitioner's proposed amendments are deemed not to relate back, then the new claims would constitute new petitions, and, to have the new claims heard despite the one-year statute of limitations, petitioner would have to show that they were brought within one year of "the date on which the factual predicate of the . . . claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). However, respondent has not addressed the relation-back issue and instead argues the merits of petitioner's original and proposed additional claims.
Given this rather muddled state of affairs, and respondent's failure to address the ramifications of Rule 15(c), this Court believes that "the simplest and wisest course is to slice through the tangles in a different direction." Newton v. Coombe, No. 95 CIV. 9437 GEL, 2001 WL 799846, at *10 (S.D.N.Y. July 13, 2001); accord Williams v. Donnelly, Nos. 00-CV-4445DGT, 00-CV-4447DGT, 00-CV-4448DGT, 2005 WL 2290592, at *29 (E.D.N.Y. Apr. 12, 2005). In keeping with the approach taken by the Second Circuit in Fama v. Commissioner of Correctional Services, 235 F.3d 804, 816 (2d Cir. 2000), as well as by various district courts within this circuit, this Court will grant petitioner's motion to amend the petition and address and dispose of petitioner's proposed new claims on the merits. See Newton, 2001 WL 799846, at *10 ("Assuming arguendo, as the Court of Appeals did in Fama, that the proposed amendment would relate back to the filing of the original petition, and pretermitting the exhaustion issue, as permitted by 28 U.S.C. § 2254(b)(2) in dealing with meritless petitions, the petition must nevertheless be denied, because petitioner's new claim[s] do[ ] not justify habeas relief."); accord Williams, 2005 WL 2290592, at *29 (citations omitted).
With respect to the exhaustion issue, respondent states in its supplemental answer, "We believe that the petitioner has exhausted each claim raised in his collateral motions. However, if District Court should find otherwise, we do not waive the exhaustion requirement." Respondent makes no further argument regarding the defense of non-exhaustion and, by addressing all of petitioner's claims on the merits, treats them as exhausted. The Court observes that it is respondent's burden to assert any affirmative defenses to petitioner's claims; the Court is not in the business of making respondent's arguments for it. Respondent's statement in its supplemental answer thus will be treated as a waiver of the exhaustion requirement.
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of ...