The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
Before the Court are Petitioner William L. Coke's motion to amend ("Motion to Amend") his Amended Petition (Doc. No. 26)*fn1 and his motion to stay ("Motion to Stay") (Doc. No. 30) the Proposed Amended Petition (Doc. No. 32) and to hold it in abeyance pending exhaustion of the claims he raised in a motion to vacate his conviction that he filed in Niagara County Court in March, 2009 pursuant to N.Y. Crim. Proc. Law §440.10 ("§ 440.10 Motion"). For the reasons set forth below, Petitioner's Motion to Amend is granted, and his Motion to Stay is denied.
Petitioner's Motion to Stay, submitted in the form of a letter dated March 16, 2009 and filed March 20, 2009, seeks to hold his petition in abeyance pending his exhaustion of the § 440.10 Motion filed in Niagara County Court in March, 2009, a copy of which he filed in this Court on April 23, 2009 (Doc. No. 31) in conjunction with the Motion to Stay.*fn2 The § 440.10 Motion upon which Petitioner's Motion to Stay is premised, the third such motion that he has filed in state court, was denied by Order of the Niagara County Court (Hon. Sara S. Sperazza) dated April 30, 2009 (Doc. No. 33).
Petitioner moved for leave to appeal the April 30, 2009 Order of the Niagara County Court denying the § 440.10 Motion to the Appellate Division, Fourth Judicial Department ( See Doc. No. 34). By Order dated September 24, 2009, the Appellate Division, Fourth Department denied Petitioner's motion for leave to appeal (Doc. No. 35). A denial by the Appellate Division of a motion brought pursuant to N.Y. Crim. Proc. Law §440.10 is not reviewable by the New York Court of Appeals, Bethune v. Sabourin, 299 F. Supp. 2d 162, 164 (W.D.N.Y. 2004), and the claims asserted in the § 440.10 Motion motion have thus been exhausted. Therefore, Petitioner's application for a stay, which requested that his habeas corpus petition be held in abeyance pending his exhaustion of the claims raised in his § 440.10 Motion in state court, has been rendered moot by the exhaustion of those claims, and must be denied. See, e.g., Valerio v. Phillips, 02-CV-903(RJA)(VEB), 2007 U.S. Dist. LEXIS 86327, at *3-5 (W.D.N.Y., Nov. 21, 2007) (motion to stay habeas corpus petition was denied as moot where claims on which the motion was predicated were subsequently exhausted in state court proceeding brought pursuant to N.Y. Crim. Proc. Law §440.10).
Petitioner's letter motion to the Court dated February 14, 2009 (Doc. No. 26), which the Court has construed as the Motion to Amend, which is captioned "Petition to Amend 440.0 and Amend Memorandum of Law," confusingly conflates federal and state court proceedings, as the letter begins by stating that Petitioner is writing "to petition the Court for a motion to [his] amend 440.10 motion filed Dec. 8, 06, and denied by the Appellate Division, Fourth Dept. Aug. 07" (Doc. No. 26 at 1). Coke's original petition for habeas corpus was in fact filed in this Court in December, 2006, but Petitioner's subsequent reference to a decision of the Appellate Division in August, 2007 appears to be a reference to a determination he received from the Appellate Division of the New York State Supreme Court with respect to one of the several applications that he filed for post-conviction relief in state court. The February 14, 2009 letter is also confusing to the extent that it contains what appear to be indiscriminate references to a number of issues which would appear to be relevant to either or both his state and federal proceedings.
However, shortly after filing the February 14 letter, Petitioner submitted under cover of letter dated March 1, 2009 what is labeled an "Amended Petition," organized in conformity with the components of a form habeas corpus petition, and accordingly docketed as a Proposed Amended Petition (Doc. No. 32). The Court therefore has liberally construed Petitioner's letter dated February 14, 2009, as a Motion to Amend. By Order dated March 11, 2009, the Court directed that Respondent respond to the motion by April 17, 2009. (Doc. No. 27). The response, filed March 16, 2009 stated that Respondent did not oppose the petitioner's motion to amend ((Doc. No. 28).
Motions to amend or to supplement a pleading are governed under Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) provides that, after a responsive pleading has been served, a party may amend its pleading "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The Respondent having proferred his written consent in accordance with Rule 15(a)(2), the Court will grant Petitioner's motion to file a second amended petition for a writ of habeas corpus, and will accordingly direct that the Proposed Amended Petition (Docket No. 32) be docketed as "Second Amended Petition for Writ of Habeas Corpus", and that respondent shall file and serve an answer thereto.
Accordingly, for the reasons stated above, IT HEREBY IS ORDERED, that Petitioner's Motion to Stay his petition for a writ of habeas ...