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Smith v. West


December 15, 2006


The opinion of the court was delivered by: Gustave J. Dibianco, U.S. Magistrate Judge


Presently before this Court is a Motion to Amend the Petition filed by Remus Smith ("Petitioner" or "Smith"). Dkt No. 15. Respondent did not file a response to the Motion.

A. Background.

In his original habeas Petition, Smith complained of a judgment rendered in Onondaga County Court wherein Petitioner was convicted by a jury of murder in the second degree, attempted murder in the second degree and possession of a weapon. Petitioner claims that he was thereafter sentenced to a term of twenty eight years to life imprisonment. The convictions are alleged to have been reversed by the Appellate Division, Fourth Department, and Petitioner alleges that the Court of Appeals reversed and remanded the case to the Fourth Department on February 13, 2002. On May 3, 2002 the Fourth Department issued an Order addressing the issues remanded by the Court of Appeals. On February 3, 2003 the Court of Appeals denied Petitioner leave to appeal.

Petitioner raised six claims in support of the original Petition, including insufficient evidence, Petitioner's "involuntary" confession, denial of his right to present a full defense when Petitioner was prohibited from offering evidence of the decedent's character, denial of due process when the jury was given the statement of a witness who did not testify, denial of Petitioner's Motion for a Mistrial based upon the jury's review of the statement of a non-testifying witness, and the denial of a fair trial due to the cumulative effect of the trial court errors. See Dkt. No. 1. The Response to the Petition was filed on January 14, 2004. Dkt. No. 6.

This action was stayed by Order of this Court dated September 28, 2004 so that Petitioner could return to state court to exhaust additional claims. Petitioner has filed with this Court the decisions of the Onondaga County Supreme Court (Dkt. No. 13) and the Appellate Division, Fourth Department (Dkt. No. 15) reflecting that Petitioner has completed his state court proceedings. Thus, the stay in this action will be lifted.

B. Motion to Amend.

Petitioner's Motion to Amend seeks to add three new claims to this action. More specifically, Petitioner seeks to add a claim for ineffective assistance of counsel based upon trial counsel's alleged failure to request that Petitioner's statements to the police be suppressed, alleged prosecutorial misconduct due to the prosecutor's use of Petitioner's statements that were illegally obtained, and the prosecutor's alleged knowing use of false testimony against Petitioner. See Dkt. No. 15.

A Motion to Amend a pleading is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. Proc. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993).*fn1 Leave will be denied when an amendment is offered in bad faith, would cause undue delay or prejudice, or would be futile. See Foman v. Davis, 371 U.S. 178, 182, (1962); see also Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (district court may properly deny leave when amendment would be futile); Electronics Communications Corp. v. Toshiba America Consumer Prods., Inc., 129 F.3d 240, 246 (2d Cir.1997).

Local Rule 7.1(a)(4) of the Local Rules of Practice of this District provides, in pertinent part:

An unsigned copy of the proposed amended pleading must be attached to a motion brought under Fed. R. Civ. P. 14, 15, 19-22. Except as provided by leave of court, the proposed amended pleading must be a complete pleading which will supersede the original pleading in all respects....

One of the purposes of the requirement that motions to amend be accompanied by a copy of the proposed amended Petition is to ensure that all of the allegations asserted against the respondent(s) named therein are contained in a single document, thereby reducing the likelihood that a party will overlook one or more allegations against him. Moreover, this requirement eliminates the confusing nature of "piecemeal" amended pleadings. See Rodriguez v. Tedford, No. 95-CV-745, slip op. at 2 (N.D.N.Y. Nov. 7, 1995) (Hurd, M.J.).

Petitioner's "Amended Petition" does not contain the information necessary to be considered a complete pleading. Although the amended Petition refers to five "attachments", no documents are appended to the proposed amended Petition.

In addition, Rule 2 of the Rules Governing Habeas Corpus Proceedings provides:

(c) Form. The petition must:

(1) specify all the grounds for relief available to the petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly handwritten, and

(5) signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. §2242.

The proposed amended Petition does not set forth the facts that support the grounds that Petitioner seeks to assert. Without such information, it is impossible for this Court to determine whether the amended Petition is timely and/or whether any of the claims can be found to relate back to the original Petition.*fn2

Finally, without the benefit of the factual basis for the proposed new claims, this Court is unable to determine whether such amendment would be futile. The Court notes that the state court decision from the §440 Motion found that the issues raised on the motion had (1) already been litigated in the trial court and raised on appeal,*fn3 (2) were factually unsupported in the record,*fn4 or, (3) were known to Petitioner at the time his appeal was taken from the original verdict and should have been raised on direct appeal.

For all the foregoing reasons, the Court denies Petitioner's Motion to Amend the Petition without prejudice.

WHEREFORE, it is hereby

ORDERED, that the stay entered in this case on September 28, 2004 (Dkt. No. 10) is hereby lifted, and it is further

ORDERED, that Petitioner's Motion to Amend (Dkt. No. 15) is DENIED, and it is further

ORDERED, that the Clerk serve a copy of this order upon the parties hereto in accordance with the Local Rules.


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