The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner James Young ("Young") currently has a habeas corpus proceeding before this Court. Previously, Young had filed a motion to have his petition stayed and held in abeyance; the Court denied the motion without prejudice with leave to refile because Young had not set forth sufficient information on which to determine whether a stay would be an appropriate exercise of discretion under Rhines v. Weber. Young now has refiled his motion for a stay and has filed a motion to amend his petition. Respondent has opposed both of Young's application.
As respondent argues, Young has failed to establish that a stay is warranted in his case and, for the reasons that follow, the motion to stay and the motion to amend are denied with prejudice.
Based on the submissions currently before the Court, it appears Young seeks to amend his petition to add a claim of ineffective assistance of counsel based upon his attorney's purported failure to have utilized certain allegedly exculpatory discovery material: (1) the City of Buffalo Bureau of Fire Investigation Investigator's Fire Report; (2) the Fire Incident Report; and (3) City of Buffalo Incident Report. These documents relate to the fire set at the house of Arkillia Hudson ("Hudson") which Young was convicted of setting. Hudson was Young's estranged girlfriend and the mother of his child. Young also states "that his trial counsel failed to conduct a prompt investigation and abandoned the 'Discovery Doctrine' pursuant to C.P.L. 240," suggesting that trial counsel somehow erred--although it is not clear from Young's pleadings how. Young also appears to be alleging that the prosecution failed to disclose this information pursuant to its discovery obligation under Brady v. Maryland, 373 U.S. 83 (1963).*fn1 ; he has subsequently obtained the tape by means of a Freedom of Information request directed toward the Erie County Clerk's office and the Buffalo Fire Department. Young contends that but for the prosecution's failure to disclose this alleged Brady material and defense counsel's deficiencies in pursuing receipt of said material, the result of his trial would have been more favorable. Young argues that the information in the reports would have been critical impeachment material with regard to the testimony of Antone Martin ("Martin"), the current boyfriend of Hudson, who called 911 to report the fire. According to respondent, what petitioner describes as Brady material is nothing more than his attempts to nitpick inconsistencies between information in certain reports and testimony elicited at trial.
The allegations by Young in support of his motion for a stay do not meet the stringent criteria set forth in Rhines v. Weber, 544 U.S. 266, 277 (2005). In Rhines, the Supreme Court stated,
[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 not grant him a stay at all. . . .
On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.
Turning first to Rhines' "good cause" requirement, Young has not offered a sufficient justification for why he did not previously exhaust the claim that he was denied Brady material. The Supreme Court has not issued any pronouncement regarding the standard for "good cause" in the context of stay-and-abeyance of habeas petitions. See, e.g., Bryant v. Greiner, No. 02 Civ. 6121, 2006 WL 1675938, at * 5 (S.D.N.Y., June 15, 2006); Aessa v. Annetts, No. 06 CV 5830(ARR), 2007 WL 1299155, at *3 (E.D.N.Y., April 30, 2007). "Some courts outside this Circuit, have analogized the good cause analysis to that of the 'cause' analysis required to overcome a procedural bar. Bryant v. Greiner, 2006 WL 1675938, at * 5 (citations omitted). Other courts have surmised that the Supreme Court likely intended a broader standard in the stay-and-abeyance context, and therefore "good cause" requires a "lesser showing." Id. (citations omitted). However, "[e]ven in cases which expressly reject the notion that 'good cause' is analogous to 'cause' for a procedural default, the 'good cause' has arisen from external factors, not petitioner's own decisions." Ramdeo v. Phillips, No. 04-CV-1157 (SLT), 2006 WL 297462, at * 6 (E.D.N.Y. Feb. 8, 2006) (citations omitted).
Respondent notes that the prosecutor complied with her discovery obligations by turning over Rosario material (i.e., all statements by witnesses) to defense counsel prior to the commencement of trial. See Resp't Exs. A, B). And, in his "Statement of Facts to Amended Petition", Young admits that after the judgment of conviction was entered and he was sentenced on March 13, 2003, defense counsel provided him with copies of his trial minutes, discovery material and "additional material relative to his indictment." According to Young, this material was then "lost" by the Erie County Holding Center.
However, it was not until more than a year later, on October 13, 2004, that Young made a Freedom of Information Law (F.O.I.L.) request to the Buffalo Fire Department seeking the information at issue. See Pet'r Ex. F. Three years later, he filed a petition pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Article 78 seeking disclosure of the documents. This application was granted by the court (Drury, J.) on March 27, 2007. One ...