The opinion of the court was delivered by: John Gleeson, United States District Judge
Frankie Hernandez moves pursuant to Fed. R. Civ. P. 60(b)(1) for relief from judgment denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hernandez claims that judgment should be vacated because the Court inadvertently failed to send him a copy of the October 2, 2006 order lifting the stay of his habeas proceeding and informing him that if he wished to have the Court to consider additional claims, he should file an amended petition within thirty days of the date of the order. Hernandez argues that had he received that October 2, 2006 order, he would have amended his petition and would therefore not have been precluded from having his "actual innocence" claim adjudicated by this Court.
Hernandez, convicted of one count of second-degree murder and one count of second-degree criminal possession of a weapon, was sentenced to concurrent terms of imprisonment of twenty-five years to life and five to fifteen years, respectively, for his crimes.*fn1
On November 7, 2005, Hernandez filed a petition for a writ of habeas corpus in this Court, raising most of the claims that he had raised on direct appeal as well as claims that were denied in his § 440 motion and his two coram nobis applications. On January 4, 2006, Hernandez filed a second § 440 motion, claiming that trial counsel was ineffective for failing to call two witnesses to testify at trial; one would have undermined the credibility of the government's eyewitness, and another would have provided Hernandez with an alibi. Attached to the motion were the affidavits of those two potential witnesses, Pete Rosado and Lisa Coreano.
Rosado, an inmate incarcerated with Hernandez, affirmed that he was with Hernandez in Hernandez's home at the time of the crime. Coreano, Hernandez's older niece and after-school care-taker when Hernandez was young, stated that Hernandez did not frequent the neighborhood of Crescent and Weldon Streets in 1982, as the government's eye-witness had testified. Hernandez asserted that these affidavits were not available when he made his first motion to vacate his conviction, so they constitute new and additional evidence.
On January 6, 2006, Hernandez requested that I hold his petition in abeyance while he exhausted his new ineffective assistance claim in state court. In an order dated January 16, 2007, I held the petition in abeyance and informed Hernandez that "In the event [he] does not obtain relief from the state court, he shall notify this court and move to amend his habeas petition within 30 days of that denial. The respondent will then have 30 days in which to file supplemental opposition papers." See docket entry dated January 17, 2006.
The state court denied Hernandez's § 440 motion, holding that his claims were procedurally barred because he could have raised them in his previous § 440 motion. The claims were also barred because Hernandez had failed to act with due diligence to place all essential facts on the record before sentencing. Notwithstanding these procedural bars, the state court denied his claims on the merits, concluding that there was no basis for a claim of actual innocence because Hernandez did not allege, either on appeal or in his letters annexed to his coram nobis applications, that he had told counsel of Rosado, his alibi witness. The court also considered Hernandez's nine-year delay in making the claim, finding that such a lengthy delay undermined the legitimacy of his claim. Leave to appeal to the Appellate Division was denied on September 11, 2006. Pursuant to my order dated January 17, 2006, Hernandez had 30 days from September 11, 2006 to notify the Court of the denial of his motion and to move to amend his habeas petition.
In a letter dated September 26, 2006, Hernandez advised the Court that his § 440 motion had been denied and that leave to appeal to the Appellate Division had also been denied. He informed the Court that he had moved in state court to renew his § 440 motion, and he requested that the Court continue to hold his petition in abeyance.
In an order dated October 2, 2006, I denied that request, ordering that the "stay is hereby lifted, and petitioner is directed to file any supplement to his petition regarding that claim by November 1, 2006. The respondent shall file a response by November 22, 2006. The petitioner's September 19, 2006 request for another stay is denied. Oral argument will be held (by teleconference with petitioner) on December 15, 2006 at 9:30 a.m." See docket entry 11.
In a letter dated October 9, 2006, Hernandez stated that he had received the order indicating that a hearing would be held on December 15, 2006, and asked what that hearing pertained to. In response, I issued an order dated November 4, 2006, informing Hernandez that he would be provided with an opportunity to highlight certain parts of his habeas petition.
Hernandez appeared telephonically at the December 15, 2006 oral argument, but because he was barely audible, I gave him the opportunity to highlight in writing the reasons why he felt that his petition should be granted. On or about January 22, 2007, he filed an Amended Petition and a Memorandum of Law in support of that amended petition. He added "Ground Seven," which asserted the actual innocence/ineffective assistance of counsel claim that he had raised in his second § 440, for which his petition had been held in abeyance.
By memorandum and order dated February 8, 2007, I denied Hernandez's petition. I assume familiarity with that decision, on which judgment was entered on February 13, 2007. In the first footnote of the decision, I wrote,
On January 22, 2007, Hernandez submitted an array of papers in further support of his petition. In those papers, Hernandez adds a new claim for relief for his counsel's alleged failure to present certain alibi evidence at trial, predicated upon the ineffective assistance of counsel and "actual innocence." This claim had been pending decision in state court when the instant petition was filed. Hernandez had previously asked that I stay his petition while he prosecuted that claim in state court -- I denied that application on October 2, 2006. See Docket Entry 11. Hernandez now asserts that when I attempted to hear Hernandez's oral argument in support of this petition, I "orally granted petitioner permission to amend his ...