The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On June 16, 2006, petitioner filed a petition for habeas corpus relief, pursuant to 28 U.S.C. § 2254, challenging a state court conviction. (Docket No. 1).*fn1 On June 21, 2006, the Court issued an Order directing respondent to file and serve an answer and memorandum of law in response to the petition. (Docket No. 3). On August 25, 2006, the Court received petitioner's "Motion Requesting Amendment to Petition ("Motion to Amend")" (Docket No. 12), which was not initially docketed by the Court but was later ordered to be filed nunc pro tunc on the date it was received. (Docket No. 13). On August 31, 2006, respondent's counsel filed an answer and memorandum of law in response to the petition. (Docket Nos. 9-10).
Petitioner's Motion to Amend did not include a proposed amended petition but did present two additional grounds petitioner wished to add to the petition: (1) the verdict of guilty on the count of murder in the second degree (depraved indifference), N.Y. Penal L., § 125.25(2), was against the weight of evidence, and (2) ineffective assistance of trial counsel based on the allegation that trial counsel failed to challenge the constitutionality of the second degree murder statute under which he was convicted (depraved indifference), N.Y. Penal L., § 125.25(2), on the ground that the statute fails to define the more serious mens rea required for "depraved indifference murder."*fn2 At the time of receipt of the Motion to Amend, it appeared to the Court that the ineffective assistance of trial counsel claim based on counsel's failure to challenge the constitutionality of the depraved indifference murder statute, see People v. Suarez , 844 N.E.2d 721 (N.Y. 2005), had not been unexhausted. Petitioner's direct appeal from his conviction raised a claim that his conviction for second degree murder was against the weight of evidence. (Petition, ¶ 9(d)(2); Docket No. 8, Answer, ¶ 6). See also People v. Timmons , 750 N.Y.S.2d 395 (N.Y.A.D. 4 th Dept. 2002).
The Court liberally construed the Motion to Amend as, in effect, a "partial" amended petition, see Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.1983), and, therefore, rather than requiring petitioner to file a "complete" amended petition asserting both the claims raised in the original petition and the additional claims set forth in the Motion to Amend, the Court directed that the operative amended petition in this matter would consist of the original petition and the Motion to Amend. (Docket No. 13). Because it appeared that petitioner had not exhausted the ineffective assistance of counsel claim set forth in the Motion to Amend-- viz. , that counsel failed to challenge the constitutionality of the depraved indifference murder statute-, petitioner was provided a Section 2254 Exhaustion Response Form setting forth his options as to how to proceed in light of the unexhausted claim raised in the operative amended petition.
Petitioner was directed to return the Response Form and advise the Court as to how he wished to proceed.*fn3 (Docket No. 13).
Petitioner filed the Response Form (Docket No. 15) selecting Option One thereby withdrawing the claim in the operative amended petition that his counsel was ineffective in failing to raise the constitutionality of New York's depraved indifference second degree murder statute. He also filed, as instructed on the Response Form, an amended petition (Docket No. 14), which raised the same claims raised in the initial petition (Docket No. 1, Petition, ¶ 22 A-F), and the one remaining claim raised in the Motion to Amend-- viz. , that the verdict of guilty to depraved indifference murder was against weight of the evidence. (Docket No. 14, Amended Petition, ¶ 22 A-G). Accordingly,
IT HEREBY IS ORDERED as follows:
1. Respondent shall file and serve an answer and memorandum of law in response to the amended petition (Docket No. 14), in accordance with Rules 4 and 5 of the Rules Governing Section 2254 Cases in the United States District Courts, no later than September 10, 2007 . Further, the answer shall state whether a trial or any pre-trial or post-trial evidentiary proceeding was conducted.*fn4
2. Petitioner shall have thirty (30) days upon receipt of the answer and memorandum of law to file a written reply to the answer and memorandum of law.