The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Lenell Robinson ("Robinson") filed the instant habeas proceeding challenging his conviction for second degree (depraved indifference) murder pursuant to N.Y. Penal Law § 125.25(2) with regard to the shooting death of Corey Thomas. See Petition (Docket No. 1).*fn1 Robinson asserted the following grounds for habeas relief: (1) the trial court erred in refusing to charge the lesser included offense of criminally negligent homicide; (2) the trial court erred in failing to include the "initial aggressor" language in its jury instruction on the defense of justification; and (3) the verdict on the depraved indifference conviction was against the weight of the evidence.
On October 25, 2007, Robinson filed a pleading titled, "Request for Stay" (Docket No. 21) with the Court. Robinson has requested that his habeas petition be held in abeyance while he returns to state court for purposes of exhausting a claim based on the "sufficiency of the evidence" supporting his murder conviction "in light of the recent jurisprudential shift in the law concerning depraved indifference murder." Petitioner's Request for Stay (Docket No. 21) (citing People v. Feingold, 7 N.Y.2d 288 (N.Y. 2006); Policano v. Herbert, 7 N.Y.3d 588 (N.Y. 2006)). It is not clear from Robinson's Request for a Stay whether he yet has initiated exhaustion proceedings in state court with regard to his insufficiency-of-the-evidence claim.
For the following reasons, Robinson's motion to hold the petition in abeyance is denied without prejudice.
Upon reviewing Robinson's Petition (Docket No. 1), the Court notes that it does not appear to be a "mixed petition"--i.e., one that contains both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509 (1982). A review of the state court records reveals that Robinson presented all of the claims raised in the Petition in his appellate brief on direct appeal of conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Thus, it does not appear that the Court is presented with a "mixed" petition at this time. Rather, based on this Court's reading of Robinson's Request for a Stay, he is seeking to add a new, unexhausted claim to his Petition.
"[A] district judge confronting a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition." Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir.), cert. denied sub. nom. Fischer v. Zarvela, 534 U.S. 1015 (2001). The Supreme Court has approved the use of such a stay in limited circumstances. See Rhines v. Weber, 125 S.Ct. 1528 (2005) (cautioning that, even where good cause exists for a petitioner's failure to exhaust his claim in state court, a federal habeas proceeding should not be stayed pending exhaustion when the claim is "plainly meritless"). Here, because the Court does not appear to be confronted by a "mixed" petition, Robinson's motion to hold the Petition in abeyance is premature. See Clancy v. Phillips, 04 CV 4343KMK, 2005 WL 1560485, at *6 (S.D.N.Y. July 1, 2005) ("Although the Court may, in its discretion, stay a habeas case while a petitioner pursues state remedies on unexhausted claims, see Rhines, the Court declines to do so here. The stay-and-abeyance procedure is available when the Court is confronted by a mixed petition, but no mixed petition is presented in this case at this time.") (citation omitted)). Accordingly, before the Court can properly address Robinson's motion for a stay, Robinson must file a motion to amend the Petition pursuant to Federal Rule of Civil Procedure 15 to include the new, unexhausted claim of insufficient evidence that he seeks to add to the Petition. The motion to amend the petition must attach a proposed amended petition that raises both the claims now raised in the petition and the new claim that Robinson needs to exhaust.
Petitioner is advised that in his motion to amend the petition he should address the "relation back" requirement of Rule 15(c) of the Federal Rules of Civil Procedure. Where a petitioner seeks to add a new claim to his habeas petition after the expiration of the statute of limitations*fn2 , he is required to show that the proposed amendment "relates back" to the claims in the original petition. Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000) ("[W]e hold that Rule 15(c) [of the Federal Rules of Civil Procedure] applies to [28 U.S.C.] § 2254 petitions for habeas corpus."). An amendment relates back if the claim that is sought to be added "arose out of the conduct, transaction, or occurrence set forth" in the original petition.
FED. R. CIV. P. 15(c)(1)(B).*fn3 The Supreme Court recently has circumscribed the definition of Rule 15(c)'s "conduct, transaction, or occurrence" in the habeas context, holding that it cannot be read to encompass a petitioner's state-court criminal "trial, conviction, or sentence." See Mayle v. Felix, 545 U .S. 644, 656 (2005). According to the Mayle court, to hold otherwise would mean that "virtually any" proposed amendments to a habeas petition would "relate back" for purposes of Rule 15(c), since "federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto." Id. at 657 (citation omitted). Instead, the Supreme Court determined that "relation back will be in order" provided that "the original and amended petitions state claims that are tied to a common core of operative facts." Id. A proposed amendment, however, will not "relate back" to the date of the original petition "when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 2566.
In addition to his motion to amend attaching a proposed amended petition, Robinson must re-file his motion for a stay. He should be aware that in Rhines v. Weber, 544 U.S. at 277, the Supreme Court limited the district courts' approval of stay requests to those situations where there is both a showing by petitioner of "good cause" for the petitioner's failure to exhaust the claims in state court prior to bringing the federal habeas corpus petition and that the unexhausted claims are not "plainly meritless." Id. at 277.*fn4 When Robinson submits his new motion for a stay, he should address (1) whether there was "good cause" for petitioner's failure to exhaust the new claims; (2) whether the claim "relates back" to the originally pled claims, see Mayle v. Felix, 545 U.S. 644 (2005); and (3) whether the new claim is "potentially meritorious" on federal habeas corpus review). See, e.g., Faden v. Annetts, 05 Civ. 1850 (BSJ) (DF), 2005 WL 1765714 (S.D.N.Y. July 26, 2005) (denying request for stay without prejudice to renew upon a showing of "good cause", that the proposed claims "relate back", and that the new claims are "potentially meritorious").
Because Robinson has thus far failed to show both "good cause" for the failure to exhaust and that the new claim is "potentially meritorious," Robinson's request for a stay of these proceedings with respect to any unexhausted claim must be denied without prejudice at this time. The Court points out that this Order does not in any way limit petitioner's ability to begin to pursue any state court remedies that may be available to him with regard to his insufficiency-of-the-evidence claim independent of his habeas petition. He is advised, however, that he must fulfill the conditions stated herein for amending his habeas petition so as to present the claim of insufficient evidence to this Court.
IT IS HEREBY ORDERED that, petitioner's Request for a Stay is DENIED without prejudice subject to petitioner's re-filing the motion and showing pursuant to Rhines v. Weber, 544 U.S. at 277-78, that (1) there is "good cause" for his failure to exhaust the new claim; (2) that the new claim relates back under FED. R. CIV. P. 15 and Mayle v. Felix, 545 U.S. at 650,*fn5 to the claims originally pled in the Petition; and (3) that the new claim is ...