The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
Presently before the court is petitioner's Third "Motion for Leave to Stay/Amend Petitioner's Habeas Corpus Petition." (Docket No. 19). In attempt to unravel what claims petitioner may be seeking to exhaust at this time and add to the current amended petition, the court will, as best as it can discern from petitioner's filings, summarize what claims are currently raised in the amended petition, which of those claims are exhausted or unexhausted, and what claims petitioner now seeks to add to the amended petition and whether such claims are exhausted or unexhausted. At that time, the court will decide the pending motion.
On January 3, 2005, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition, which was filed on the court's form for filing petitions for habeas corpus relief pursuant to 28 U.S.C. § 2254, failed to specify the grounds upon which the petition was based (Docket No. 1, Petition, ¶ 22), but it did identify what grounds petitioner had raised on direct appeal from the conviction and in his state court application for a writ of error coram nobis. On February 24, 2005, respondent filed a response and memorandum of law in response to the petition (Docket Nos. 5-6), which noted that the petition did not raise any grounds for relief but went on to address briefly the claims petitioner had raised on direct appeal. (Docket Nos. 6, Memorandum of Law, pp. 7-12). On March 3, 2005, petitioner filed a motion requesting a stay of the petition, pursuant to Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied sub. nom. Fischer v. Zarvela, 536 U.S. 925 (2001), so that he could exhaust certain claims he had putatively raised in his petition. The motion, however, did not specify what claims were unexhausted but simply noted that petitioner had filed a N.Y.CRIM.PROC.L., § 440.20 motion, a state habeas corpus petition, and a petition for a writ of certiorari with the United States Supreme Court. (Docket No. 7, Motion to Stay, Exh. A). On March 11, 2005, the court denied petitioner's motion for a stay without prejudice as premature, and directed petitioner to file both an amended petition setting forth each and every ground he intended to raise in this federal habeas corpus proceeding, both exhausted and unexhausted, and a renewed motion for a stay that identified specifically what claims were unexhausted and the status of any state court exhaustion proceedings filed to date by petitioner. (Docket No. 8).
On March 25, 2005, petitioner filed a second motion for a stay and a supporting affirmation, which attached an amended petition for habeas corpus relief and copies of most of petitioner's post-conviction motions and proceedings. (Docket No. 10).*fn1 The amended petition raised the following four grounds for relief: (1) petitioner's Fifth and Fourteenth Amendment rights were violated because the state trial court judge failed to state on the record that the People had proved the elements of the offense charged (assault in first degree) when announcing his verdict; (2) New York State does not provide a remedy under the Fourteenth Amendment to challenge a violation of a constitutional right; (3) the defense was precluded from cross-examining a prosecution witness with regard to her prior history in violation of the Sixth Amendment's confrontation clause; and (4) the state trial court judge during a non-jury trial must state on the record the applicable principles of law as to reasonable doubt which the state trial court judge failed to do when he failed to state on the record that the People proved the elements of the offense charged beyond a reasonable doubt.*fn2 (Docket No. 12, Amended Petition, ¶ ¶ 22 A-D; Docket No. 19-2, Declaration in Support of Petitioner's [Third] Notice of Motion For Leave to Stay/Amend His Habeas Corpus Petition ("Declaration"), ¶ 34)).
Petitioner's affirmation in support of his second motion for a stay sets forth a procedural history of his state court proceedings, and attempts to set forth what claims are unexhausted. (Docket No. 10-1, Affirmation in Support of Second Motion for Stay). The affirmation in support of the second motion for a stay states that petitioner "filed a State Habeas Corpus Petition . . . raising the [following] non-exhausted claims to be later heard on the Federal Habeas Corpus Petition[:]" (1) the trial court judge violated petitioner's Fifth and Fourteenth Amendment rights when he failed to state on the record when announcing his verdict that the People had proved each of the elements of the offense charged beyond a reasonable doubt; and (2) New York State does not provide a remedy under the Fourteenth Amendment to challenge a violation of a constitutional right. (Docket No. 10-1, Affirmation, p. 5). As noted in footnote 1, supra, the state habeas corpus petition was denied on March 27, 2007, when the New York Court of Appeals denied his motion for leave to appeal from the denial of his state habeas corpus petition and to proceed as a poor person.
On July 6, 2005, the court issued an Order directing the Clerk of the Court to separately docket the amended petition (Docket No. 12), which had been attached to the second motion for a stay, and directed respondent to file a response to petitioner's second motion for a stay. (Docket No. 11).
On August 18, 2005, respondent filed a response to the amended petition and a memorandum of law in response to both the amended petition and the renewed motion for a stay. (Docket Nos. 14-15). Respondent asserted that the motion for a stay should be denied because the "only" unexhausted claim raised in the amended petition--viz., that the trial judge announced the guilty verdict without stating on the record that the People had established petitioner's guilt beyond a reasonable doubt (Ground Four)--*fn3 did not need to be exhausted because it is deemed exhausted but procedurally defaulted. (Docket No. 15, Respondent's Memorandum of Law, pp. 4-5). See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Respondent asserts that this claim is deemed exhausted but procedurally defaulted because it was raised in petitioner's state court petition for habeas corpus relief and denied on the procedural ground that petitioner raised the claim on direct appeal or could have raised the claim on direct appeal and habeas corpus was not intended as a substitute for an appeal. (Docket No. 10-2, Appendix. E, Order of Supreme Court, W yoming County) (citations omitted).
The court, without specifically determining what claim or claims were unexhausted, denied the second motion for a stay without prejudice, pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2205), to re-filing upon a showing of "good cause" for petitioner's failure to previously exhaust the unexhausted claims in state court and that the unexhausted claims were not "plainly meritless."*fn4 (Docket No. 18). Petitioner then filed the instant motion for a stay/amend the petition (Docket No. 19). Respondent has not filed a response to the motion as directed. (Docket No. 21). On April 6, 2007, the court docketed a letter from petitioner, dated March 29, 2007 (Docket No. 25), informing the court that the Appellate Division had denied his appeal or application for leave to appeal from the denial of his state habeas corpus petition and that the New York Court of Appeals had denied his motion for leave to appeal from the denial of his state habeas corpus petition and to proceed as a poor person. People ex rel. Middlebrooks v. Conway, 865 N.E.2d 1245 (N.Y. 2007).
THIRD MOTION FOR STAY/AMEND PETITION
Petitioner, pursuant to the court's Order denying his second motion for a stay without prejudice (Docket 18), filed the instant motion for a stay and to amend the amended petition. (Docket No. 19). The motion, and its declaration and memorandum of law in support (Docket No. 19-2, and 19-3), are, like all the rest of petitioner's filings in this court, convoluted and difficult to understand. He again goes through the procedural morass of the underlying criminal proceedings, and his writ of error coram nobis, N.Y.CRIM.PROC.L. § 440.20 motion and state habeas corpus proceedings (see n. 1, supra), but again does not clearly identify what claim or claims are unexhausted and what claim or claims he seeks to add to the amended petition by way of the instant motion. The court does not say this critically because it appears that petitioner is genuinely attempting to respond to the court's Orders and proceed in both state court and this court as best he can. No one can argue with the notion that the law with respect to exhaustion, timeliness, stays and amendments of habeas corpus petitions is difficult to understand even for the most experienced federal habeas corpus practitioner, let alone a pro se indigent inmate not learned in the law.
Liberally construing the motion and supporting papers as the court must do and understanding them as best the court reasonably can, it appears to the court that, in addition to the four grounds now set forth in the amended petition (Docket No. 12), petitioner also seeks to add to the amended petition, among others, the four ineffective assistance of appellate counsel claims raised in petitioner's application for a writ of error coram nobis (Docket No. 19-2, Declaration, ¶ 25, p. 8).*fn5 Because the ineffective assistance of counsel claims have been exhausted in state court by way of the application for a writ of error coram nobis and because respondent has not opposed the third and instant motion for a stay and to amend (Docket No. 21), petitioner will be allowed to amend the amended petition to add the ineffective assistance of appellate counsel claims as exactly set forth and raised in his "Brief in ...