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Stephanski v. Superintendent of Upstate Correctional Facility

May 18, 2006

PAUL STEPHANSKI, PETITIONER,
v.
SUPERINTENDENT OF UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Paul Stephanski ("Stephanski" or "Petitioner"), has sought federal habeas review pursuant to 28 U.S.C. § 2254 of his conviction in Monroe County Court on charges of first degree rape and first degree sexual abuse. Stephanski's initial Petition for habeas relief was filed in this Court on August 6, 2002. See Docket #1. He filed an Amended Petition on October 28, 2003, see Docket #23, and then filed a motion to amend the Amended Petition, see Docket #49. The Court granted Stephanski permission to amend the Amended Petition on December 20, 2004, see Docket #56, and ordered respondent to answer the Second Amended Petition (Docket #52). Since that time, Stephanski has filed numerous motions to amend the second amended petition, to have his petition stayed, for the appointment of counsel, and for discovery from respondent. See generally Docket #57 et seq.

The somewhat tortuous procedural history of this matter is set forth in more detail in Docket #89, in which the Court (Foschio, M.J.) denied Stephanski's second motion for a stay without prejudice to re-file upon an adequate showing pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Specifically, under Rhines, there must be good cause for Stephanski's failure to exhaust the new claims that he wished to add to the second amended petition; the claims must "related back" to the claims originally pled; and the claims must not be "plainly meritless." See Order Denying Stay (Docket #89). The Court directed Stephanski to provide a "listing of claims that he intend[ed] to pursue in these proceedings, whether said claims are exhausted and, if so, how and when they were exhausted, whether said claims are claims that were previously raised in these proceedings, and whether said claims are new claims that he seeks to exhaust and add to these proceedings." See id.

A. Third Motion for a Stay

Stephanski has now returned with his third motion for a stay. See Docket ##91-94. In his "Memorandum of Law to Stay Proceedings" (Docket #93-1), Stephanski requests a stay to "allow [him] to file a [New York Criminal Procedure Law] 440.10 motion." According to this memorandum of law, Stephanski wishes to exhaust "two additional claims," which, he alleges, are not barred by the statute of limitations because they "relate back to ground eight (ineffective assistance of trial counsel under cumulative effect)." Id. Unfortunately, Stephanski does not state clearly what these two additional claims are, although, several times in this pleading, he states that he wants to return to state court to exhaust "two claims." On page 1, Stephanski writes that he "prays to more fully develop the claims of trial counsels [sic] critical errors outlined in ground three of the second amended petition." Id. He notes that the "original second amended petition asserts a ground three with a point one" and that "petitioner seeks to fully develop point two as:

'Evidence submitted was insufficient as a matter of law, conviction was against the weight of the evidence, defense counsel was ineffective in failing to make reasonable objections to the witnesses [sic] testimony and courts [sic] charge to the jury, and unreasonable, prejudicial statements made by trial counsel [sic] in summation lessened the burden of proof denying petitioner a fair trial in violation of state and federal constitutional rights.'"

Id. at 2 (Docket #93-1). The foregoing paragraph does not list one claim; rather, it appears to assert at least claims four claims: (1) the evidence was insufficient; (2) the verdict was against the weight of the evidence; (3) trial counsel was ineffective in failing to object to unspecified witness testimony; (4) and the prosecutor committed misconduct by making comments that shifted the burden of proof to the defense.

Then, on page 3 of the Memorandum of Law, Stephanski begins discussing an issue apparently relating to the prosecutor's obligation to disclose exculpatory or impeachment evidence: he accuses the prosecutor of allegedly "misrepresenting the plea deal given to a defendant." Petitioner's Memorandum of Law to Stay Proceedings at 3 (Docket #93-1). Presumably, this refers to a plea bargain entered into by co-defendant Riccardo Giuliano ("Giuliano") prior to trial.*fn1 In any event, it appears that this is the second issue that Stephanski wishes to add to the Second Amended Petition. See id. ("This also is developed at trial and summation, this relates back to the prosecutorial misconduct claimed, although it is an issue not raised in the second amended petition, only the bolstering, vouching and misconduct are raised in the second amended petition ground four.").

In the "Argument" section of the "Memorandum of Law to Stay Proceedings," Stephanski says that his "request for a stay is to allow a [New York Criminal Procedure Law] 440[.10] motion to be filed in state court to fully exhaust two claims listed in the second amended petition, statement of facts at #13." Memorandum at 5 (Docket #93-1). Stephanski does not indicate the docket number assigned to the pleading to which he refers. According to the Court's records, the pleading docketed as the Second Amended Petition (Docket #52) does not list any claims under paragraph 13 of the statement of facts. However, in the Second Amended Memorandum of Law (Docket #72), there is a "#13" in the Statement of Facts section. In it, Stephanski states that "petitioner has two major issues that have not been exhausted and that would reverse the conviction, one is the prosecutorial misconduct misrepresenting the plea of Giuliano and no evidence to support the charges." Second Amended Memorandum of Law at ii (Docket #72).

After carefully reviewing Stephanski's Memorandum of Law to Stay Proceedings (Docket #93-1) and the Second Amended Memorandum of Law (Docket #72), the Court believes that Stephanski is attempting to add an ineffective assistance of counsel claim based on the failure to object to unspecified witness testimony, a claim of prosecutorial misconduct during summation, a claim regarding prosecutor's disclosure of Giuliano's plea bargain; a claim that the evidence was insufficient, and a claim that the verdict was against the weight of the evidence.

B. Standard Under Rhines v. Weber

Recently, the Supreme Court held that, in keeping with the purposes of AEDPA's*fn2 amendments to the habeas corpus statute, a petitioner's request for "stay and abeyance should be available only in limited circumstances." Rhines v. Weber, 544 U.S. 269, supra. Stays should be granted only "if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. Neither the Supreme Court nor the Second Circuit has yet defined the contours of "good cause" in the context of stay and abeyance. District courts in this Circuit have varied in their interpretations of the standard for "good cause." Wallace v. Artus, No. 05 CIV. 0567 SHS/JCF, 2006 WL 738154, *4 (S.D.N.Y. Mar. 23, 2006) (citing Fernandez v. Artuz, No. 00 Civ. 7601, 2006 WL 121943, at *5 (S.D.N.Y. Jan. 18, 2006) (collecting cases); Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1813 (2005) (stating that "filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted . . . [as a method of coping with] reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court")).

Here, Stephanski asserts that the "good cause" for his failure to exhaust his claims in state court is that he "is a layman, has no legal training, a limited education with poor comprehension skills, and limited access to legal materials or persons trained to provide adequate legal assistance." When federal courts have considered affirmative defenses in the habeas context, such as the statute of limitations, exhaustion of state remedies, procedural default, and non-retroactivity, they have found that a petitioner's ignorance of the law does not justify excusing his failure to comply with the rules governing habeas petitions. For instance, in the context of procedural default, a petitioner's allegation that he pro se and inexpert in the law does not provide sufficient "cause" to excuse the failure to raise a claim in the proper state court tribunal. Graham v. Leonardo, 166 F.3d 1200, 1998 WL 852942, at *2 (2d Cir. 2000) ("[I]ignorance does not constitute good cause excusing procedural default in these kinds of circumstances.") (unpublished opinion) (citing Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). See also Plowden v. Romine, 78 F. Supp.2d 115, 120 (E.D.N.Y. 1999) ("There is no limiting principle to [petitioner's] argument that simple ignorance-absent any showing of diligence on his part or allegations of impediments to his staying informed about this case-should provide a basis for equitable tolling; to hold that the statute of limitations should be extended in this case would allow the statute to be extended indefinitely.").

Even assuming that Stephanski could demonstrate "good cause," which this Court expressly finds he is unable to do, the Court would deny the request for a stay on other grounds. The first reason relates to futility: Most, if not all of the claims Stephanski wishes to add, would be procedurally defaulted if Stephanski were to attempt to raise them in state court by means of a motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. In particular, the following claims are procedurally barred: (1) insufficiency of the evidence; (2) the verdict was against the weight of the evidence; (3) the prosecutor committed misconduct by making comments that shifted the burden of proof to the defense; and (4) the prosecutor "misrepresented" the terms of the plea bargain entered into by co-defendant Giuliano. This is because sufficient facts appeared on the record to have allowed them to be raised on direct appeal, and the motion court would deny these claims on that basis. See N.Y. Crim. Proc. Law § 440.10(2)(c). In addition, Stephanski's ineffective assistance of trial counsel claim, which relates to counsel's alleged failure to object to certain unspecified witness testimony, also would be procedurally barred. Although trial counsel cannot be expected to argue on appeal that he was ineffective, here Stephanski had different appellate counsel on direct appeal, and she did, in fact, assert that trial counsel was ineffective on several grounds. Again, because the ineffectiveness claims that Stephanski wishes to add is based on facts contained in the trial transcript, and because Stephanski had different counsel on appeal, the claim could have been raised on direct appeal. Thus, if he were to raise this ineffective assistance of trial counsel claim in a C.P.L. § 440.10 motion, it would be denied pursuant to C.P.L. § 440.10(2)(c). See Reyes v. Keane, 118 F.3d 136, (2d Cir. 1997) (stating that denial of a C.P.L. § 440.10 motion, pursuant to § 440.10(2)(c), will not always be appropriate in the ineffective assistance context but holding that petitioner's claim was deemed exhausted and procedurally defaulted because it did not fall within any of the exceptions noted by the New York courts) (citing People v. Harris, 109 A.D.2d 351, 491 N.Y.S.2d 678, 687 (App. Div. 2d Dept. 1985) (trial record insufficient to resolve ineffective assistance claim), appeal denied, 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 (N.Y. 1985); see also Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (holding that petitioner's ineffective assistance of trial counsel claim was procedurally barred where the claim was "particularly well-established in the trial record" since it was based on the fact that trial counsel "plainly failed to object on inconsistency grounds to charging the counts in the conjunctive"); Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (petitioner claimed ineffective assistance of trial counsel based on failure to object on double jeopardy grounds; C.P.L. § 440.10(2)(c) barred such a collateral attack where petitioner unjustifiably failed to raise the ineffective assistance issue on direct appeal).

For all of these reasons, then, a stay is patently inappropriate,*fn3 and Stephanski's third request for a stay is denied. Accordingly, the Court will proceed to consider Stephanski's request for habeas relief based on the claims asserted in the Second Amended Petition (Docket #52). For the reasons set forth below, the petition is denied.

III. Analysis of Second Amended Petition

A. Factual Background Concerning Petitioner's Underlying Conviction

The conviction here at issue stems from Stephanski's participation in the gang rape and aggravated sexual assault of a young woman, Jill Dickenson ("Dickenson"), who had lost consciousness after consuming alcohol and several hits of the drug MDMA ("Ecstasy"). Stephanski's co-perpetrators in the assault were Giuliano and Michael Puff ("Puff"). Stephanski was indicted on two counts of first degree rape (as a principal) and two counts of first degree sexual abuse (as a principal). He was also indicted on one count of first degree rape and one count of first degree sexual abuse as the accomplice of Giuliano. Giuliano pleaded guilty prior to trial to one count of first degree rape; Stephanski and Puff were tried jointly in Monroe County Court (Geraci, J.).

The prosecution presented proof at trial that the attack on Dickenson occurred in the early morning hours of October 21, 1998, at the apartment of Jennifer Savage ("Savage"), a friend of the complainant's. Dickenson had gone to Savage's apartment with the understanding that she, Savage, John DeFazio ("DeFazio") (Savage's boyfriend), and Puff, were going to do the drug Ecstasy. T.600.*fn4 Stephanski, who previously was unknown to the complainant, arrived at the gathering unexpectedly. He had invited Giuliano, who in turn had invited his friend, Eric Sullivan ("Sullivan"). T.601-03, 637. During the course of the evening, everyone at the party consumed beer; all except Sullivan consumed Ecstasy in both a liquid and pill form. T.491, 610, 627, 633, 660. Dickenson related that Stephanski made numerous lewd and suggestive comments to her which caused her to feel uncomfortable.

As the evening wore on, the effects of the Ecstasy and the alcohol caused Savage, DeFazio and Dickenson to lose consciousness. Once Dickenson had passed out, Puff and Sullivan carried her into a spare bedroom and placed her on the bed, fully clothed. Shortly thereafter, Stephanski, Giuliano, Puff and Sullivan went into the spare bedroom with the intention of seeing "some breasts." Stephanski and Puff stripped Dickenson of her clothes. Puff asked "if the [other] guys wanted to go rounds?" T.663-64, 766-67. According to the testimony of Sullivan and Giuliano, Stephanski "jumped on" the complainant and raped her twice while she remained unconscious. T.664, 767. Giuliano testified that he told Stephanski to stop, but Stephanski ignored him and continued to assault Dickenson. T.764, 768. Giuliano admitted that he ultimately also raped Dickenson. Puff then penetrated her vagina with a beer bottle and a vacuum cleaner. T.666-68, 767-70.

DeFazio was awakened by Puff, who bragged that "the Puffer ha[d] something to show [him]." T.492. After being led to the spare bedroom, DeFazio discovered the complainant sprawled out on the bed, still unconscious and naked from the waist down. DeFazio also observed a vacuum cleaner, the handle of which was upright against the complainant's vagina. T.492-93. DeFazio then immediately ordered everyone to leave the apartment. T.586. Stephanski, Puff, and Sullivan all departed in a car driven by Giuliano. During the drive, Stephanski and Puff concocted a lie to tell the police in the event that they were questioned about the attack on Dickenson. ...


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