The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner William Valerio ("Valerio" or "Petitioner"), acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on October 10, 1997, in New York State Supreme Court (Seneca County), on charges of criminal possession of a controlled substance in the first degree (N.Y. Penal Law § 220.20(1)). See Petition (Docket No. 1). In the Petition, when asked to list all of the grounds asserted for habeas relief, Valerio referred to an "Exhibit F". In Exhibit F, Valerio states under "Ground One" that appellate counsel was ineffective in failing to argue that (a) trial counsel was ineffective in failing to object to the admission of the seized drugs based on failure to establish the chain of custody, (b) trial counsel was ineffective in failing to object to the prosecution's failure to disclose certain Rosario material (i.e., the sentencing minutes of accomplice Maurice Cox ("Cox") who pled guilty and agreed to testify at Valerio's trial), (c) trial counsel was ineffective in failing to request a jury instruction regarding the corroboration requirement concerning accomplice testimony, and (d) trial counsel was ineffective in failing to request that the jury be instructed "to not value the co-defendant's guilty plea when evaluating" Valerio's guilt. "Ground Two" in Exhibit F states that "petitioner was denied effective assistance of trial counsel" and then elaborates on the underlying claims of ineffective assistance of trial counsel asserted in Ground One's claim of ineffective assistance of appellate counsel. Under "Ground Three" in Exhibit F, Valerio states that the "accumulative [sic] errors denied petitioner due process and a fair trial" and goes on to assert that the errors of trial counsel and appellate counsel, considered together, denied him of his Sixth Amendment right to effective representation at trial and on appeal. See Docket No. 1.
On or about May 1, 2003, Valerio filed a pleading titled Amended Petition (Docket No. 9) asserting one additional ground for relief--that the prosecutor knowingly suborned perjured testimony by Cox, the accomplice. On June 30, 2003, the Court (Foschio, M.J.) permitted Valerio to file the proposed Amended Petition (Docket No. 9). See Docket No. 13. Respondent answered the Amended Petition and filed a memorandum of law in opposition on August 7, 2003. See Docket Nos. 15, 16.
On or about October 15, 2003, Valerio filed another motion to amend in which he sought to add what appear to be exactly the same claims that he set forth in his Petition (Docket No. 1) and Amended Petition (Docket No. 9). See Petitioner's Second Motion to Amend ("Pet'r Second Mot. Amend.) (Docket Nos. 20, 21). On June 30, 2004, the Court (Foschio, M.J.) granted this motion and directed Valerio to file his Second Amended Petition by February 20, 2004. Valerio did so. See Docket No. 26.
By motion dated March 1, 2004, Valerio moved to stay the instant habeas proceeding so that he could exhaust two additional claims of ineffective assistance of trial counsel in a collateral motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. See Petitioner's Motion to Stay (Docket No. 28). Respondent opposed this application. See Docket Nos. 30, 31. While awaiting decision on his stay motion, Valerio filed a C.P.L. § 440.10 Motion in Supreme Court of Seneca County, presumably for the purpose of exhausting the following claims asserted in the Second Amended Petition (Docket No. 26): trial counsel was ineffective because (1) counsel had a conflict of interest and (2) counsel "fail[ed] to properly and truthfully express and opinion as to whether the plea offer should be accepted or rejected; . . . [gave] erroneous advice to Valerio to reject the plea offer; [and] . . . communicat[ed] . . . erroneous information regarding Valerio's maximum sentence exposure." See Petitioner's C.P.L. § 440.10 Motion attached as Exhibit A to Respondent's Affirmation in Opposition to Amendment of Habeas Corpus Petition (Docket No. 39). In support of this motion, Valerio attached affidavits from his wife, Cheryl Valerio ("Mrs. Valerio"), and his sister, Cindy Valerio ("Cindy"). See Exhibit B to Respondent's Affirmation in Opposition to Amendment of Habeas Corpus Petition (Docket No. 39). The trial court (Bender, J.) denied the motion on the basis of C.P.L. § 440.10(3)(c). See Exhibit C to Respondent's Affirmation in Opposition to Amendment of Habeas Corpus Petition (Docket No. 39). Valerio sought leave to appeal the denial of this motion to the Appellate Division, Fourth Department, on June 23, 2004. See Exhibit D to Respondent's Affirmation in Opposition to Amendment of Habeas Corpus Petition (Docket No. 39). The Appellate Division denied leave to appeal on August 3, 2004. See Exhibit F to Respondent's Affirmation in Opposition to Amendment of Habeas Corpus Petition (Docket No. 39).
On September 27, 2004, the Court (Foschio, M.J.) dismissed Valerio's Motion to Stay as moot because he had exhausted the proposed ineffective assistance claims by means of the C.P.L. § 440.10 motion, and ordered that the most recently filed amended petition would be treated as a Motion for Leave to File a Third Amended Petition. See Docket No. 35. Valerio thereafter filed a pleading titled "Proposed Amended Third Petition" (Docket No. 36), which appears to be the same as the Second Amended Petition (Docket No. 26), and a Memorandum of Law (Docket No. 37). The Proposed Amended Third Petition reiterated the claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and use of perjured testimony by the prosecution that Valerio had raised in his Petition (Docket No. 1) and Amended Petition (Docket No. 9). The only new claims included in the Proposed Third Amended Petition were the claims of ineffective assistance of trial counsel that Valerio had raised in the C.P.L. § 440.10 Motion. Thus, the only new claims sought to be added in the Proposed Third Amended Petition are that (1) trial counsel was ineffective because he operated under a conflict of interest and (2) trial counsel was ineffective assistance in that he failed to properly advise petitioner on whether to accept the prosecution's plea offer.
Respondent has opposed this most recent request by Valerio to amend his petition, arguing that leave to amend would be futile under Rule 15 of the Federal Rules of Civil Procedure because the claims are procedurally defaulted. Respondent also contends that Valerio's multiple requests to amend are improper and dilatory litigation tactics. In his reply papers, Valerio argues that his claims are not procedurally defaulted and that they properly "relate back" to the original claims for purposes of Rule 15.
Turning first to the issue of procedural default, Valerio argues that C.P.L. § 440.10(3)(c), relied upon by the C.P.L § 440.10 motion court to deny his new ineffective assistance claims, cannot constitute an independent and adequate state procedural bar because it is a discretionary and not mandatory rule. Section 440.10(3)(c) provides that a court "may" deny a motion to vacate in each of the circumstances it identifies, and also provides that "in the interest of justice and for good cause shown" a court may exercise its discretion and grant a meritorious motion.
C.P.L. § 440.10(3)(c).*fn1 The Court must agree, however, with respondent that Valerio's proposed ineffective assistance of trial counsel claims appear to be procedurally defaulted as a result of the state court's reliance upon Section 440.10(3)(c), which allows for the denial of a motion to vacate when the defendant could have raised the underlying ground or issue in previous motion to vacate under Section 440.10 but unjustifiably did not do so. See Murden v. Artuz, 497 F.3d 178, 192-94 (2d Cir. 2007) (holding that C.P.L. § 440.10(3)(c) was "adequate" state ground to serve as procedural bar to federal habeas review of merits of claim of ineffective assistance of counsel alleging that trial counsel should have had murder defendant evaluated by psychiatrist, given that state court referred explicitly to rule when dismissing claim, that state courts regularly applied rule to deny claims that could have but were not raised on previous motions to vacate, that defendant did not substantially comply with rule, and that enforcement of rule served legitimate governmental interests). A federal court is generally procedurally barred from considering a ruling that, as did the C.P.L. § 440.10 court's holding in Valerio's case, "'fairly appeared to rest primarily on state procedural law.'" Murden, 497 F.3d at 191 (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.2006) (citation omitted in original; alteration in original)). To obtain habeas review of these procedurally defaulted claims, Valerio must either demonstrate "'cause and prejudice for the procedural default,'" or that the "'constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense.'" Murden, 497 F.3d at194 (quoting Dretke v. Haley, 541 U.S. 386, 393 (2004) (other citations omitted)).
Cause requires showing that the petitioner was impeded by some objective factor external to the defense, such as governmental interference or the reasonable unavailability of the factual basis for the claim. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). In addition, "actual prejudice" resulting from the errors is required. See id. Valerio has not attempted to demonstrate cause, prejudice, or factual innocence. In fact, as the C.P.L. § 440.10 court noted, there appears to be no reason why Valerio could not have raised the proposed ineffective assistance of trial counsel claims earlier: In 1999, five years before, he had filed a C.P.L. § 440.10 motion to vacate alleging other deficiencies in defense counsel's performance that occurred during trial. I find it significant that Valerio has not claimed that he was not aware earlier of the factual bases for his new ineffective assistance of counsel claims, which relate to counsel's advice, given pre-trial, regarding a plea offer and a conflict of interest that stemmed from the payment arrangements allegedly made with defense counsel. Notably absent from the affidavits from Valerio's wife and sister submitted in support of these claims of a conflict of interest and faulty plea advice are any specific dates of the alleged actions and omissions by defense counsel. As there appears to be no external factor that prevented from exhausting and asserting his proposed ineffective assistance claims in a timely matter, Valerio cannot demonstrate cause for the procedural default and the claims are procedurally barred from further habeas review. Because both cause and prejudice must be demonstrated in order to overcome a procedural default, there is no need for consideration of whether "actual prejudice" will result since Valerio has failed to establish the requisite "cause." See Murray v. Carrier, 477 U.S. 478, 496 (1986) (adhering to the cause and prejudice test "in the conjunctive") (quotation omitted); accord Femia v. United States, 47 F.3d 519, 524 (2d Cir. 1995); Sosa v. United States, 2003 WL 1797885, *6 n.3 (S.D.N.Y. Apr. 3, 2003)). Consequently, Valerio's proposed ineffective assistance claims must be found to be procedurally defaulted, and permitting amendment of the petition to add them would be futile.
The Court now turns to the application of Rule 15 to Valerio's motion to amend. Section 2242 of the federal habeas statute states that a petition for habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242; accord Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000). "Rule 11 of the Rules Governing 2254 Cases provides that '[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.'" Fama, 235 F.3d at 815. Rule 15 of the Federal Rules of Civil Procedure governs amended and supplemental pleadings in civil actions. 235 F.3d at 815; Fed. R. Civ. P. 15. The Second Circuit has held that, in habeas cases, "subsection (c) of Rule 15 [of the Federal Rules of Civil Procedure] governs motions to amend where (as here, given the AEDPA), the statute of limitations for the underlying cause of action has already run." Id. at 814-16.
Under the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress imposed a one-year statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). Valerio's Petition, filed on December 9, 2002, was deemed to be timely even though the petition was filed 131 days after AEDPA's statute of limitations expired because the Court (Skretny, D.J.) found that Valerio qualified for equitable tolling. See Docket No. 8. As Valerio's original petition was already over 100 days late when it was filed in December 2002, his most recent motion to amend clearly was filed long after the statute of limitations had run. Thus, the claims in the Proposed Third Amended Petition will be time-barred, unless such claims "relate back" to the date the initial petition was filed within the meaning of Rule 15 of the Federal Rules of Civil Procedure. Mayle v. Felix, 545 U.S. 644 (2005); accord Fama, 235 F.3d at 816 (holding that "Rule 15(c) applies to § 2254 petitions" and stating that because the petitioner in that case had moved to amend his petition long after the one-year statute of limitations had run, he was required to show that his amended petition relates back in accordance with Rule 15(c)"); Ching v. United States, 298 F.3d 174, 181 (2d Cir. 2002) ("Fed. R. Civ. P. 15(c) governs the timeliness of a motion to amend submitted after AEDPA's statue of limitations has expired. . . . Under Rule 15(c), an amendment is timely if it 'relates back' to the original habeas motion [under § 2255 or petition under § 2254.") (citations omitted).
Rule 15(c) provides in relevant part as follows: "An amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. 15(c)(2).*fn2 In Mayle v. Felix, 125 S.Ct. at 2562, the Supreme Court rejected the habeas petitioner's contention Rule 15(c)'s "conduct, transaction, or occurrence" standard should be interpreted broadly to mean the same "trial, conviction, or sentence." Instead, it adopted a narrower "time and type" analysis and held that an amended petition "does not relate back . . . when it asserts a new ground for relief supported by facts that differ in time and type from those the original pleading set forth." Id. at 649-50; see also id. at 657.
As the district court noted in Veal v. United States, No. 5122(MBM), 2007 WL 3146925 (S.D.N.Y. Oct. 9, 2007), even before the Supreme Court's decision in Mayle, "[v]arious Circuit Courts employed a similarly narrow approach to Rule 15(c) for habeas cases." Id. at *5 (citing United States v. Hicks, 283 F.3d 389, 388-89 (D.C. Cir. 2002); United States v. Espinoza-Saenz, 235 F.3d 501, 503-05 (10th Cir. 2000); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th Cir. 2000); United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000); United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)). The Second Circuit, however, in Fama (a pre-Mayle habeas case brought under 28 U.S.C. § 2254), applied the same Rule 15(c) standard used in ordinary civil cases and stated that the "pertinent inquiry, in [determining whether a claim arises from the same conduct, transaction, or occurrence] is whether the ...