The opinion of the court was delivered by: William M. Skretny United States District Judge
On March 14, 2002, following a jury trial, petitioner, Ricky Orta, was convicted of one count of "intentional" murder in the second degree, N.Y. Penal Law, § 125.25(1), and one count of criminal possession of a weapon in the second degree, id. § 265.03, and sentenced to twenty-five years to life in prison. (Petition, ¶ 1-4). He had also been charged with, but acquitted of, "depraved indifference" murder in the second degree, N.Y. Penal Law, § 125.25(2).
The initial petition for habeas corpus relief raised three claims for relief: 1) the jury verdict of intentional murder was against the weight of the evidence; 2) the prosecution failed to establish that the out-of-court declaration it was permitted to introduce at trial fell under the excited utterance exception to the hearsay rule; and 3) the prosecution impermissibly cross-examined petitioner about his failure to complain to the police about the victim's prior threats against him in violation of his right against self-incrimination. (Docket No. 1, Petition, ¶ 22).
Presently before the Court is petitioner's renewed motion to stay or hold the petition in abeyance so that he can continue to exhaust two additional or "new" claims in state court. (Docket No. 12-1). Along with the motion to hold the petition in abeyance, petitioner filed an amended petition (Docket No. 12-2), which raises the two new claims he is currently exhausting in state court: (1) the prosecution improperly charged both intentional and depraved indifference murder--a "mirror [sic] theory" of the same crime--which deprived petitioner of his right to a fair trial;*fn1 and (2) ineffective assistance of trial counsel based on trial counsel's failure to raise the issue that the prosecution impermissibly charged and presented to the jury both intentional murder and depraved indifference murder.*fn2 (Docket No. 12-2, Amended Petition, Grounds Four and Five).
After the filing of the motion to hold the petition in abeyance and amended petition, the Court directed that the amended petition be construed as a motion to amend the petition, see Fed.R.Civ.P. 15(a), and provided respondent an opportunity to respond to both the renewed motion to hold the petition in abeyance and to amend the petition. (Docket No. 13). Respondent filed a response to the motions opposing them (Docket No. 14), and petitioner filed a reply (Docket No. 15) and a letter regarding the status of his state court exhaustion proceedings (Docket No. 17).
Petitioner asserts that when his matter was on direct appeal, he requested assistance from the Coxsackie Correctional Facility Law Library to prepare a pro se supplemental brief and was provided assistance from an inmate law assistant. (Docket No. 12). He claims that the arguments raised in his pro se supplemental brief were rejected by the Appellate Division on the grounds that they were unpreserved for appellate review and without merit. The Appellate Division's Memorandum affirming petitioner's conviction noted that the two claims raised in the pro se supplemental brief were that the court improperly charged the jury with respect to the justification defense and the affirmative defense of extreme emotional disturbance, and that petitioner was denied a fair trial based on the delay in receiving Brady and Rosario material. The Appellate Division held that petitioner failed to preserve the first claim and that, in any event, the court's charge conveyed the correct legal standards. As to the second claim, the Appellate Division found that petitioner conceded that he received the material before trial and that, because he did not later object or seek sanctions as to the delay, he was deemed to have abandoned the claim. People v. Orta, 12 A.D.3d 1147 (4th Dept. 2004).
The Court notes that neither of these claims are the two new claims petitioner is currently exhausting*fn3 and has raised in the amended petition and, therefore, the relevance of his assertion that he received poor advice from the inmate law assistant in preparing his pro se supplemental brief and that this somehow satisfies the "good cause" requirement of Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 1532-33, 161 L.Ed. 2d 440, 450 (2005), is not immediately apparent to the Court.
Petitioner also asserts that the new claims are potentially meritorious because his trial counsel's unfamiliarity with the law in New York involving the "mirror" charges of intentional murder and depraved indifference murder led to his conviction and the prosecution's decision to charge both counts of murder denied him a fair trial. See People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267, 844 N.E.2d 721 (2005).
Respondent asserts in opposition to the motions that the new claims raised in the amended petition are time barred under 28 U.S.C. § 2244(d)(1)-(2), and they do not relate back to the claims raised in the initial petition. He also asserts that the new claims would be procedurally barred if he were to raise them in a N.Y.Crim.Proc.L., § 440.10 ("§ 440.10") motion, see § 440.10(2)(c), and that petitioner has neither established good cause nor that the claims are potentially meritorious as required under Rhines, 544 U.S. at 277-78, 125 S.Ct. 1528, 1532-33, 161 L.Ed. 2d 440, 450.*fn4
In Rhines, the Supreme Court held:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.
And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should ...