The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Najee Player, currently incarcerated in Clinton Correctional Facility in New York, seeks to supplement his petition for a writ of habeas corpus with additional claims. For the reasons stated below, I grant Player leave to amend his petition, but find his new claims without merit and deny the petition as amended.
On August 6, 2001, Player was convicted of participating in a brutal gang murder. The offense conduct proven at trial and the procedural history of Player's case are set forth more fully in my Memorandum and Order of March 6, 2007, familiarity with which is assumed. The Appellate Division affirmed Player's conviction on April 25, 2005. People v. Player (Player I), 793 N.Y.S.2d 536, 536 (2d Dep't 2005). Player sought rehearing and leave to appeal to the New York Court of Appeals, but both applications were denied. He did not collaterally attack his conviction in state court.
On May 30, 2006, Player petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he claimed that he was deprived a fair trial because (1) the trial court failed to instruct the jury that defendants may not be convicted solely on the uncorroborated testimony of accomplice witnesses in violation of N.Y. Crim. Proc. Law § 60.22; (2) the trial court should have instructed the jury that unlawful imprisonment in the first degree is a lesser included offense of kidnapping in the second degree; (3) the state constructively amended the indictment by changing its theory of the case at trial; (4) the trial court's preliminary instructions to the jury violated N.Y. Crim. Proc. Law § 270.40 by reciting each count of the indictment and allowing the jury to find that Player was guilty before he was able to present his evidence; and (5) the prosecutor made improper remarks at trial and in summation.
On March 6, 2007 I issued a Memorandum and Order denying Player's petition. Judgment was entered on March 8, 2007, and Player appealed my denial of his petition on March 28, 2007. On September 17, 2007, Player requested permission to file a second petition for the writ of habeas corpus but did not indicate what claims he sought to present. In an Order dated October 10, 2007, I transferred the petition to the Court of Appeals for the Second Circuit pursuant to Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996).
On October 17, 2007, believing Player's appeal of my March 6, 2007 Memorandum and Order still to be pending, I vacated my October 10, 2007 Order as improvidently entered. See Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005) ("[S]o long as appellate proceedings following the district court's dismissal of the initial petition remain pending when a subsequent petition is filed, the subsequent petition does not come within AEDPA's gatekeeping provisions for 'second or successive' petitions."). In my October 17, 2007 Order, I set a briefing schedule for Player to submit supplemental claims and to argue that he should be granted leave to amend his initial petition to include them.
On November 1, 2007 I received notification for the first time that the Court of Appeals had already decided Player's appeal on September 6, 2007 -- before he requested leave to file a second petition -- and entered a mandate on September 28, 2007. On November 2, 2007, I appointed counsel and directed Player to present the substance of his supplemental claims and to address whether they constituted a "second or successive" petition within the meaning of AEDPA's gatekeeping provisions. See 28 U.S.C. § 2244(b) (mandating screening of second or successive petitions).
Player's supplemental petition claims that his trial counsel was ineffective for (1) failing to request an instruction on the corroboration requirement of N.Y. Crim. Proc. Law § 60.22; (2) failing to request an instruction on the lesser included offense of unlawful imprisonment; (3) failing to move to dismiss the charges on the grounds that the government constructively amended the indictment; (4) failing to challenge the trial court's instruction outlining the elements of each count of the indictment; and (5) failing to timely challenge prosecutorial misconduct during trial and at summation. He also argues that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective in those respects. In short, Player's only claims in his supplemental petition are that his trial counsel provided ineffective assistance for failing to challenge the specific errors that Player complained of in his original petition, and that his appellate counsel provided ineffective assistance for failing to so argue.
A. AEDPA's Gatekeeping Provisions
28 U.S.C. § 2244(b)(3)(A) prohibits district courts from addressing new claims in a "second or successive" § 2254 petition unless the court of appeals issues an order authorizing consideration of the new claims. In Whab, the Second Circuit interpreted § 2255's analogous "gatekeeping" provision not to apply to subsequent petitions filed before the completion of the appeal of a district court's dismissal of the first petition. 408 F.3d at 118 ("[S]o long as appellate proceedings following the district court's dismissal of the initial petition remain pending when a subsequent petition is filed, the subsequent petition does not come within AEDPA's gatekeeping provisions for 'second or successive' petitions."). As § 2255's gatekeeping provision refers to § 2244, which governs second or successive § 2254 petitions, Whab's reasoning has been applied to § 2254 petitions as well as § 2255 petitions. See, e.g., Breeden v. Ercole, No. 06-CV-3860, 2007 WL 3541184, *1 (Nov. 14, 2007) (treating Whab holding as governing filing of second or successive § 2254 petition).
Player's September 17, 2007 request for permission to file additional claims was made before the time for seeking Supreme Court review of his initial petition had expired, and thus was made while appellate proceedings were still pending within the meaning of Whab. See Whab, 408 F.3d at 120 (noting that adjudication is not final until the time for seeking Supreme Court review expires). In light of his status at the time as a pro se petitioner, I treat Player's additional claims as relating back to his September 17, 2007 request to submit additional claims for the purposes of AEDPA's gatekeeping provisions. See id. (treating moment of filing an "application for gatekeeping approval" before the court of appeals as the "proper reference point for ...