The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Patrice Robinson ("Robinson" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in New York State Supreme Court (Monroe County) on one count of murder in the second degree (N.Y. Penal Law § 125.25(1) (intentional murder); two counts of murder in the second degree (N.Y. Penal Law §125.25(3) (felony murder), and one count of attempted murder in the second degree. See Petition (Docket No. 1). Petitioner and three cohorts forced their way into the home of Tracey Tyson and held her, her children, and several adults, hostage, while they demanded to told the whereabouts of money supposedly owed to petitioner by person named Rob Gray, who was not at the apartment. During the incident, Tyson was killed, which led to the intentional murder charge. Petitioner also faced two counts of felony murder based upon Tyson's death--with the second underlying felony being the robbery of Eddy Stewart that occurred during the incident at Tyson's apartment. The victim of the attempted murder charge was Sean Gray, whose throat was slit but who survived the attack.
Petitioner was sentenced on October 21, 1993, to terms of 25 years to life on each of the murder counts, to be served concurrently with each other. He was sentenced to 8 1/3 to 25 years on the attempted murder count, to be served consecutively to the murder sentences. Robinson's motion pursuant to C.P.L. § 330.30 to set aside the verdict on the basis on juror misconduct was denied. The Appellate Division, Fourth Department, unanimously affirmed his conviction on direct appeal, and the New York Court of Appeals denied leave.
This habeas petition followed in which Robinson has asserted the following grounds for relief: (1) prosecutor's use of a peremptory challenge to strike one African-American venireperson constituted a violation of petitioner's rights under Batson v. Kentucky; (2) the trial court erred in refusing to charge attempted manslaughter in the first degree as a lesser included offense of intentional murder in the second degree; (3) cumulative trial errors deprived him of a fair trial; and (4) the trial court erroneously denied relief under C.P.L. § 330.30 on his claim of juror misconduct.
Respondent answered the petition, acknowledging that all of the claims raised therein appeared to have been properly exhausted. Respondent argued that the Batson claim was in part procedurally defaulted, but, in any event, without merit. Respondent argued that the remaining claims similarly were non-meritorious.
Robinson subsequently filed a letter with the Court asking, in sum and substance, to have his petition stayed and held in abeyance pending his exhaustion of state court remedies regarding a claim of ineffective assistance of appellate counsel. Specifically, Robinson alleges that "appellate counsel was ineffective in failing to raise the issue of trial counsel's ineffectiveness during [his] sentencing proceedings" in that trial counsel failed to argue that the trial court "misapplied its discretionary sentencing powers under [New York] Penal Law 70.25(2) when it imposed consecutive, rather than concurrent, sentences on [his] conviction [sic] for intentional and attempted intentional murder." Robinson states that the effect of this error was his "further sentencing exposure of an additional 8 1/3 to 25 years to life, for an aggregate term of 33 1/3 years to life rather than 25 years to life."
I have construed Robinson's application as including a motion to amend the petition, as well as an application to invoke the stay-and-abeyance procedure. For the reasons set forth below, I conclude that it would be an abuse of discretion to permit post-answer amendment of the petition to add the ineffective assistance of appellate counsel claim, discussed in Robinson's letter-motion. Furthermore, I conclude that it would be an abuse of discretion to grant a stay under these circumstances, where Robinson has failed to demonstrate "good cause" for failing to exhaust the proposed claim prior to filing the original petition, or that the proposed claim is "potentially meritorious." See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Where, as here, a petitioner seeks to add new claims to his habeas petition once the statute of limitations under 28 U.S.C. § 2244(d)(1), has expired, the petitioner is required to show that the amendments "relate back" to the claims in the original petition. Fed. R. Civ. P. 15(a); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000). An amendment relates back if the claim that is sought to be added "arose out of the conduct, transaction, or occurrence set forth" in the original petition. FED. R. CIV. P. 15(c)(2). In making this determination, the court must find that the original petition "gave the defendant fair notice of the newly alleged claims." Id. (citing Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir. 1998)). In Mayle v. Felix, 545 U.S. 644, 656 (2005), the Supreme Court rejected the proposition that a petitioner's "trial, conviction, or sentence" constitute the "conduct, transaction, or occurrence" contemplated by Rule 15. To hold otherwise, the Supreme Court found, would mean that all proposed amendments would "relate back" for purposes of Rule 15(c). Id. at 657 ("[V]irtually any new claim introduced in an amended petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto.") (citation omitted). Instead, the Supreme Court elected to limit the definition of "conduct, transaction, or occurrence" as follows: "So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." Id. A proposed amendment, however, will not "relate back" to the date of the original petition "when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 2566 (emphasis supplied).
Robinson's claim of ineffective assistance appellate counsel based on trial counsel's failure to object to the imposition of consecutive sentences states an entirely new ground for relief. The factual bases underlying the claim are of a different nature than those alleged in support of the claims in the original petition. Moreover, the proposed new claim occurred during the sentencing of Robinson's criminal proceeding, so it also differs in time from the claims alleged in the original petition, which allege errors during jury selection and the trial itself. Accordingly, under the Supreme Court's holding in Mayle v. Felix, supra, petitioner's proposed amended claim does not "relate back" to the original petition.
B. Appropriateness of Stay-and-Abeyance Procedure
A further reason why Robinson's application must be denied is that he has failed to fulfill the requirements set forth in Rhines v. Weber, 544 U.S. at 277-78, for invocation of the stay-and-abeyance procedure. Because of the requirement that § 2254 habeas petitioners exhaust state judicial remedies, see Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc), and the procedural limitations imposed on habeas petitions by AEDPA,*fn1 dismissal of a petition containing exhausted and unexhausted claims "could jeopardize the timeliness of a collateral attack." Zarvela v. Artuz, 254 F.3d 374, 379-82 (2d Cir.2001). To ameliorate this situation, the Second Circuit adopted a "stay and abeyance" procedure for petitions presenting exhausted and unexhausted claims. Zarvela, 254 F.3d at 280. The Supreme Court endorsed this procedure in Rhines v. Weber, 544 U.S. 269 (2005), but held that it should be available only in limited circumstances: (1) a stay should not be granted where the unexhausted claim is "plainly meritless"; (2) "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"; (3) a "mixed ...