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Howard v. Potter

February 20, 2008

THOMAS HOWARD, PETITIONER,
v.
RICHARD POTTER, ACTING SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION and ORDER

I. Background

Petitioner Thomas Howard filed a Petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging a judgment of conviction rendered in Albany County Court on December 12, 2001, wherein after a jury trial, petitioner was found guilty of Sodomy in the First Degree; two counts of Sodomy in the Second Degree; Attempted Sodomy in the First Degree; four counts of Sexual Abuse in the First Degree; and five counts of Endangering the Welfare of a Minor. Dkt. No. 1 at 1. Petitioner was sentenced to a term of forty years imprisonment. Id. The Appellate Division, Third Department, affirmed the convictions, and on August 30, 2005, the Court of Appeals denied petitioner leave to appeal. Id. at 2. After filing his Petition, petitioner filed a motion to stay this proceeding in order to exhaust his available state court remedies with respect to his ineffective assistance of appellate counsel claims by filing a writ of error coram nobis in state court. Dkt. No. 4. By Order of this Court filed December 14, 2006, petitioner's request for a stay was granted. Dkt. No. 5. The December 14, 2006, Order set forth specific deadlines for petitioner to follow when filing his state court challenge and in reporting back to the Court. Id.

Petitioner filed an application for a writ of error coram nobis with the Appellate Division, Third Department, which was denied on March 29, 2007. Dkt. No. 8 at 2. On September 17, 2007, petitioner filed a status report with this Court advising that on August 30, 2007 the New York State Court of Appeals denied him leave to appeal from the denial of his application for a writ of error coram nobis. Dkt. No. 12 at 4. At the same time, petitioner requested a second stay so he could exhaust further claims relating to ineffective assistance of trial counsel and a defective grand jury charge. Dkt. No. 13.

Since review of petitioner's application for a writ of error coram nobis in state court was complete, by Order of this Court filed on November 30, 2007, the stay previously granted in this matter was lifted and the Clerk was directed to serve the Petition. Dkt. No. 14. The November 30, 2007 Order also denied Petitioner's request for a second stay with prejudice as to the grand jury claims, and without prejudice to renew as to the ineffective assistance of trial counsel claims upon a showing of merit and good cause. Id. Finally, the Court advised petitioner that, to the extent that he wished this Court to address the newly exhausted ineffective assistance of appellate counsel claims that he raised in his coram nobis application in state court,he must file a motion to amend his petition to set forth the additional, newly exhausted claims*fn1 within thirty days of the filing date of the November 30, 2007 Order. Id.

Currently before the Court are petitioner's motion to amend his Petition and a renewed motion for a second stay.

II. Discussion

A. Motion to Amend

Local Rule 7.1(a)(4) of the Local Rules of Practice of this District provides, in pertinent part:

An unsigned copy of the proposed amended pleading must be attached to a motion brought under Fed. R. Civ. P. 14, 15, 19-22. Except as provided by leave of court, the proposed amended pleading must be a complete pleading which will supersede the original pleading in all respects. No portion of the prior pleading shall be incorporated into the proposed amended pleading by reference.

Id. (emphasis added).*fn2

One of the purposes of the requirement that motions to amend be accompanied by a complete copy of the proposed amended pleading is to ensure that all of the allegations asserted against the opposing party are contained in a single document, thereby reducing the likelihood that a party will overlook one or more allegations against him. Moreover, this requirement eliminates the confusing nature of "piecemeal" amended pleadings. See Donato v. Senkowski, No. 97-CV-0606, 2000 WL 33743377, at *1 (N.D.N.Y. Oct. 31, 2000) (citing Rodriguez v. Tedford, No. 95-CV-745, slip op. at 2 (N.D.N.Y. Nov. 7, 1995)).

Petitioner has not provided a complete proposed amended petition along with his motion. Dkt. No. 15. Instead, Petitioner seeks to amend his Petition "by adding thereto the following additional point: POINT 4: Ineffective Assistants [sic] of Appellate Counsel." Id. at 1. Petitioner asks that "the above mentioned point (4) will or should be inserted directly after point 3."*fn3 Id.

Moreover, the proposed amended petition also does not comply with Rule 2 of the Rules Governing Habeas Corpus Proceedings which provides that a habeas petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." (emphasis added). Petitioner has failed to comply with Rule 2 because he has failed to set forth ...


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