The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Cloverious Thomas ("Thomas") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea in New York State Supreme Court (Monroe County) to various charges including criminal possession of a controlled substance and endangering the welfare of a child. In respondent's opposition to the petition, respondent noted that Thomas was seeking to add a new factual basis for arguing that his conviction was obtained by a "plea of guilty which was unlawfully induced or not voluntarily made." Specifically, Thomas alleged in his petition that his attorney informed him prior to his plea that the trial judge had stated that "if he goes through with this [suppression] hearing I will make sure he gets 25--to life and it will run separate from his V.O.P [violation of probation conviction]." Respondent's Memorandum of Law (Docket No. 13) (quoting Petition, Ground one) (Docket No. 1). Respondent argued that since Thomas was making that allegation for the first time in connection with this habeas petition, he had failed to exhaust his state court remedies with regard to this aspect of his claim that the plea was "unlawfully induced or not voluntarily made." Id.
After being served with respondent's answer and opposing memorandum of law, Thomas filed a motion to stay the petition stating, "I've discovered an unexhausted Constitutional claim that must be addressed in the state courts . . . ." Docket No. 15 (emphasis in original). Thomas did not indicate what the "unexhausted Constitutional claim" is, although the timing of his stay motion suggested to the Court that it is the claim which respondent has argued is unexhausted.
The Court denied Thomas' motion without prejudice with leave to re-file. The Court found that Thomas' submission failed to adequately identify the claim or claims Thomas wished to exhaust and failed to provide the Court with a sufficient basis on which to decide his motion to stay. Furthermore, Thomas did not address the criteria set forth by the Supreme Court in Rhines v. Weber, 544 U.S. 268, 277-78 (2005), for granting a stay-and-abeyance.
Therefore, the Court directed that if Thomas were to re-file his motion, he needed to demonstrate pursuant to Rhines v. Weber, 544 U.S. at 277-78, that (1) there was "good cause" for petitioner's failure to exhaust the new claims; (2) that the new claim or claims "relate back" under FED. R. CIV. P. 15 and Mayle v. Felix, 545 U.S. at 650,*fn1 to the claims originally pled in the Petition; and (3) that the new claims are potentially meritorious. The Court stated that to the extent Thomas seeks to add a new claim not originally set forth in the petition, he was required to file a motion to amend the petition pursuant to FED. R. CIV. P. 15 addressing the issue of timeliness of the new claims and "relation back." The Court explained that if Thomas simply sought to add the claim regarding the allegedly coercive statement made by the trial court to his attorney, he did not need to attach a proposed amended petition, since that claim was already set forth in the original petition. Otherwise, Thomas was directed to attach a proposed amended petition to his motion to amend.
Thomas subsequently re-filed his motion to stay. He appears to wish to exhaust two claims. First, Thomas claims that "indictment #0399 was defective on it's [sic] face, and duplicitious [sic]." Petitioner's Motion for Abeyance ("Pet'r Mot.") at 1-2 (Docket No. 17). Thomas raised this claim in his pro se supplemental brief to the Appellate Division. However, it was not included in the leave letter to the New York Court of Appeals.
Second, Thomas seeks to exhaust a claim of ineffective assistance of appellate counsel. He states that he "must file a Writ of Error Coram Nobis" to exhaust his claim that he "was never informed by his attorney that he could or should send a brief to the Court of Appeals in a letter dated May 4, 2007 from his attorney." Pet'r Mot. at 1, ¶1 (Docket No. 17). In the May 4, 2007 letter, appellate counsel informed Thomas that his direct appeal to the Appellate Division had not been successful. Appellate counsel stated he had "made an application to take [petitioner's] case to the . . . New York State Court of Appeals," and enclosed a copy of his leave letter. However, as Thomas notes, appellate counsel did not invite Thomas' input as to which claims to include in the leave application or advise Thomas that he could file a pro se leave application.
The claim that Thomas wanted to raise before the New York Court of Appeals was that the trial court allegedly told defense counsel at the suppression hearing, "'If the defendant goes through with this hearing I will make sure he gets 25-to-life and it will run separate from his V.O.P. sentence[.]'" Pet'r Mot., ¶2 (Docket No. 17). This claim had been asserted by Thomas in a pro se supplemental appellate brief and rejected by the Appellate Division.*fn2
"The combination of AEDPA's exhaustion requirement and its one-year statute of limitations poses a risk of unfairness to state prisoners whose federal habeas petitions contain both exhausted and unexhausted claims." Ramchair v. Conway, 2005 WL 2786975, at *17 (E.D.N.Y. Oct. 26, 2005 (citing Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005) (AEDPA "dramatically altered the landscape for federal habeas corpus petitions" by preserving the total exhaustion requirement but imposing a one-year limitations period). If the petitioner files a timely "mixed" petition which is dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982) after the limitations period has expired, the petitioner will likely get no federal review at all, even of his exhausted claims, because the statute of limitations bar would preclude refiling after the previously unexhausted claims were exhausted in state court. Rhines, 125 S.Ct. at 1533-34. As a number of courts have noted, "[t]his potential for unfairness is exacerbated by the fact that the federal petition itself does not toll the limitations period." Ramchair, 2005 WL 2786975, at *17 (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
To mitigate the potential unfairness created by AEDPA's statute of limitations, the Second Circuit prescribed a "stay and abeyance" procedure for mixed petitions. Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001) (holding that when a federal court is presented with a mixed petition, the proper course is to dismiss the unexhausted claims and to stay the consideration of the exhausted claims if dismissal of the entire petition could jeopardize its timeliness upon refiling; however, since the purpose of AEDPA's limitations period is to promote finality, and that purpose could be defeated by a lengthy stay pending further state court litigation, a stay should be conditioned on the petitioner pursuing state court remedies "within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed).
Although stay-and-abeyances were typically granted as a matter of course in this Circuit, the Supreme Court's 2005 decision in Rhines v. Weber restricted the use of stay-and-abeyances by holding that they should only be available in limited circumstances--where a petitioner has established "good cause" for his failure to previously exhaust his claims in state court; his claims are not "plainly meritless"; and he has not engaged in intentional delay or dilatory litigation tactics. Rhines, 544 US at 277. This Court, in its previous Order, stated that one of the main prerequisites for granting a stay was for Thomas to demonstrate "good cause" for failure to exhaust his state court claims. Respondent principally argues that Thomas should not be granted a stay because he has failed to address the "good cause" requirement in his motion and, in any event, he cannot establish "good cause." As respondent points out, Thomas was aware as early as May 4, 2007, of the underlying facts of his claim--namely, that appellate counsel had not informed him that he could or should file a pro se leave application. Thomas became aware of these underlying facts when he received the May 4th letter from appellate counsel indicating that the leave application had already been filed, and enclosing a copy of the leave application. After reviewing the leave application, Thomas would have known what arguments his counsel raised on appeal. Accordingly, respondent argues, the logical conclusion to be drawn is that Thomas should have been aware, as early as May 4, 2007, of his appellate counsel's allegedly ineffective assistance and should have filed an application for a writ of error coram nobis at that time. See, e.g., Scott v. Phillips, No. 05-CV-0142 (CBA), 2007 WL 2746905, at *7 (E.D.N.Y. Sept. 19, 2007); Jordan v. Corcoram, No. 9:05-CV-0118 (LEK)(GJD), 2008 WL 2437897, at *3 (N.D.N.Y. June 16, 2008).
Neither the Supreme Court nor the Second Circuit has defined with precision what constitutes "good cause" for purposes of Rhines v. Weber. Ramdeo v. Phillips, 2006 WL 297462, at *5 (E.D.N.Y. Feb. 8, 2006). However, in Pace v. Diguglielmo, decided shortly after Rhines, mentioned in dicta that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court." Pace v. Diguglielmo, 125 S.Ct. 1807, 1813-14 (2005); accord Fernandezv. Arthur, 2006 WL 121943, *4 (S.D.N.Y. Jan. 18, 2006). Several district courts have relied on this dicta to find good cause where the petitioner filed a "protective" federal habeas petition where the petitioner was confused as to whether his claims were properly exhausted in state court. Fernandez, 2006 WL 121943, at *4 (citing Rhines v. Weber, No. 00-5020, ___ F.Supp.2d ___, 2005 WL 3466015 at *2-4 (D.S.D. Dec. 19, 2005); Smith v. ...