The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Rameek Brown filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in custody in violation of the Constitution and laws of the United States pursuant to the judgment of a court of the State of New York. On August 12, 2006, petitioner requested that the court dismiss his petition for a writ of habeas corpus without prejudice because there are claims that he failed to include in the petition. For the reasons stated below, petitioner's request to dismiss the petition without prejudice is denied, and his application for a writ of habeas corpus is also denied.
Following a jury trial in New York Supreme Court, Kings County (Knipel, J.), petitioner was convicted of two counts of sexual abuse in the first degree, N.Y. Penal Law § 130.65(1), one count of criminal trespass in the second degree, N.Y. Penal Law § 140.15, and one count of harassment in the second degree, N.Y. Penal Law § 240.26(1). Petitioner was sentenced to concurrent prison terms of seven years for each sexual abuse conviction, one year for the criminal trespass conviction, and fifteen days for the harassment conviction.
On direct appeal to the Appellate Division, Second Department, petitioner raised two claims:
(1) the evidence was legally insufficient to establish first degree sexual abuse; and (2) the police officer's testimony exceeded the scope of the "prompt outcry" exception to the rule against hearsay. Petitioner argued that, although not preserved for appellate review under New York law, his insufficiency of the evidence claim should be heard by the Appellate Division "in the interest of justice." With respect to the claim that the police officer's testimony exceeded the scope of the "prompt outcry" hearsay exception, petitioner argued that it was preserved for appellate review. By order dated February 3, 2003, the Appellate Division affirmed petitioner's conviction, finding that both claims were "unpreserved for appellate review" and without merit.*fn1 People v. Brown, 302 A.D.2d 403 (2d Dep't 2003). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on April 8, 2003. People v. Brown, 99 N.Y.2d 653 (2003).
On January 12, 2004, petitioner filed an application for a writ of habeas corpus. The petition states four grounds for relief: (1) the evidence at trial was insufficient to establish first degree sexual abuse; (2) the police officer's testimony exceeded the scope of the "prompt outcry" exception to the rule against hearsay; (3) trial counsel was ineffective; and (4) the evidence adduced at trial was procured in violation of petitioner's constitutional rights.
In an order dated February 2, 2005, this court advised petitioner that his habeas petition was a "mixed petition" because it contains both exhausted and unexhausted claims. Petitioner was given the option either to abandon his unexhausted claim and proceed with only his exhausted claims, or have the court stay the petition while he returned to state court to exhaust the unexhausted claim. See Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir. 2001).*fn2 Specifically, the court advised petitioner that "the petition includes a claim of ineffective assistance of trial counsel that petitioner has not exhausted in state court." Petitioner requested that the court hold his petition in abeyance pending state court proceedings, and on March 1, 2005 this court granted petitioner's request. The court's stay was conditioned on the following: (1) that petitioner pursue state court remedies within 30 days of receipt of the order; and (2) that petitioner notify this court within 30 days of the conclusion of the state court proceedings. See Zarvela, 254 F.3d at 381. Petitioner was also required to file his motion to amend his petition, as well as the proposed amended petition at that time.
On May 3, 2005, petitioner filed an application for a writ of error coram nobis in the Appellate Division, Second Department, claiming ineffective assistance of appellate counsel. Petitioner alleged that appellate counsel failed to argue that (1) the trial court erred when it allowed the knife into evidence; and (2) the verdict was repugnant. The Appellate Division denied petitioner's application, stating that he "failed to establish he was denied the effective assistance of counsel." People v. Brown, 22 A.D.3d 595, 596 (2d Dep't 2005). Petitioner sought leave to appeal to the New York Court of Appeals, and by order dated January 24, 2006, the request was denied. People v. Brown, 6 N.Y.3d 774 (2006).
Following the denial of petitioner's motion for a writ of error coram nobis, petitioner made an application to this court, dated January 28, 2006, to reopen this case and for leave to amend his petition to add a claim of ineffective assistance of appellate counsel. On August 12, 2006, petitioner submitted a letter to the court requesting that it dismiss his petition for a writ of habeas corpus without prejudice because there are claims that he failed to include in the petition. However, if the court were to grant petitioner's request to dismiss the petition without prejudice, any future petition would be barred by the one year statute of limitations. Petitioner was previously granted a stay, with which he failed to comply; therefore, the court declines to offer him another opportunity for a stay. However, to give petitioner the benefit of any possible claim on the merits, the court will address the pending petition.
When a habeas corpus petitioner defaults a federal claim in state court, either by failing to preserve the claim for state appellate review or by failing to present the claim to the appropriate state forum within the time period prescribed by state law, the independent and adequate state ground doctrine bars federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The doctrine provides that a federal court many not review a question of federal law decided by a state court "if the decision of that court rest on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729. The independent and adequate state law ground may be either substantive or procedural. Id.
A federal court may consider a claim that was defaulted in state court only if the petitioner demonstrates cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claim would result in a fundamental miscarriage of justice because the ...