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Nguyen v. Ercole

October 24, 2007

THANG THANH NGUYEN, PETITIONER,
v.
ROBERT ERCOLE, RESPONDENT.



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

DECISION AND ORDER

On November 5, 2005, Thang Thanh Nguyen ("petitioner") filed a pro se petition for a writ of habeas corpus challenging his conviction following a jury trial in New York State Supreme Court (Monroe County) on charges of murder and robbery. See Docket No. 1. Petitioner set forth the following "Grounds Raised in Habeas Petition":

1. The prosecution's failure to preserve fingerprint evidence deprived the defendant of the ability to effectively cross-examine the prosecution witnesses and deprived him of a fair trial.

2. The defendant was deprived of his right to effective assistance of counsel.

3. The seizure of the defendant in a foreign country without any extradition proceedings violated the defendant's right to due process of law[.]

4. The sentences imposed were improper.

5. The inclusory concurrent counts should be dismissed.

6. The trial proof was legally insufficient and against the weight of the evidence.

7. Nguyen was deprived of the effective assistance of appellate counsel by virtue of his appellate attorney's failure to raise three winning issues on direct appeal: (a) the trial court's accessorial liability charge which improperly changed the prosecution's theory of the case, (b) the trial court's submission of an annotated verdict sheet and (c) ineffective assistance of trial counsel, based on trial counsel's failure to object to the submission of the verdict sheet and his waiver of an accomplice liability charge.

8. Ineffective assistance of trial counsel based on trial counsel's (a) failure to advise Nguyen as [to] the advisability of accepting the prosecution's plea offer (this claim is based on pre-trial counsel's omission) (a) [sic] failure to object to the court's instruction to the jury in response to its readback, informing them that they could convict Nguyen even if they found he was not the actual shooter and actually in the home, (b) failure to obtain a fingerprint expert, and (c) failure to timely assert the issues raised in the C.P.L. § 330.30 motion [to set aside the verdict] filed on Nguyen's behalf.

9. The prosecution's Brady violation and knowing use of perjured testimony by virtue of its presentation of Sergeant Mark Bonsignore's claim regarding the recovery of fingerprints from the crime scene.

See Appendix to Petition (Docket No. 1). Petitioner did not provide any further elaboration on the aforementioned claims in the Petition (Docket No. 1), and he did not file a separate memorandum of law. Petitioner then moved for a stay holding his petition in abeyance on October 30, 2006. See Docket No. 10. Respondent answered the petition on November 9, 2006, asserting that grounds one, six, and nine were procedurally defaulted, and that grounds two, three, four, five, seven, and eight were all without merit. See Docket Nos. 12-1, 12-2. On July 9, 2007, petitioner moved to withdraw his motion for a stay. See Docket No. 14. This matter was transferred to the undersigned on July 22, 2007. By letter to the Court and petitioner on August 7, 2007, respondent indicated that it did not oppose petitioner's motion to withdraw his stay application.

On August 30, 2007, petitioner filed what was docketed as an "Amended Petition for Writ of Habeas Corpus and supporting Memorandum of Law." See Docket No. 18. However, petitioner had not sought and obtained permission to file an amended petition. Where, as here, respondent has answered the petition, a petitioner may not file an amended habeas petition as a matter of right. See FED. R. CIV. P. 12(a)(1) ("A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . ."). The Court therefore must construe petitioner's "Amended Petition" (Docket No. 18) as containing a request to amend to his habeas original petition.

Petitioner's "Amended Petition" (Docket No. 18) is a memorandum of law consisting of argument regarding three points, which appear to be identical to grounds seven, eight and nine raised in the original petition. In the "Amended Petition" (Docket No. 18), petitioner did not include any argument regarding grounds one through six of the original habeas petition. Therefore, the Court presumes that petitioner has abandoned them and no longer intends to pursue grounds one through six in his "Amended Petition." However, petitioner has included new assertions that trial counsel was ineffective in (1) failing to "expose a key prosecution witness' perjury" (i.e., Sergeant Mark Bonsignore), (2) failing to object to hearsay by an unidentified witness, and (3) failing to request "an accomplice liability charge". See ...


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