The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Nathaniel Beard ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction upon a jury verdict in Wayne County Court on multiple counts of Rape in the Second Degree (N.Y. Penal Law ("P.L.") § 130.30), Sodomy in the Second Degree (P.L. § 130.45), Rape in the Third Degree (P.L. § 130.25), and Sodomy in the Third Degree (P.L. § 130.40). Petitioner was sentenced as a second felony offender to aggregate, indeterminate terms of imprisonment of fifteen to thirty years.*fn1
II. Factual Background and Procedural History
Petitioner's conviction arises out of a series of sexual encounters with three underage females (ages 13, 14 and 16) when petitioner was 32 years-old. Following a jury trial before Judge John Nesbitt, petitioner was found guilty of the charges relating to two of the girls, and acquitted of the single charge related to the third. There was no proof that any of the acts committed were the result of force. The three girls testified at trial to multiple acts of sexual intercourse and oral sex with petitioner at various times. The age of the victims was established through birth certificates and testimony by the girls' parents. Petitioner did not testify, nor did he present any witnesses at trial. Petitioner was sentenced as a second felony offender to aggregate, indeterminate terms from fifteen to thirty years. Sentencing Tr. 21-25. For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief.
On direct appeal, petitioner raised the following points through counsel: (1) that the jury's verdict was against the weight of the evidence; (2) prosecutorial misconduct; and (3) harsh and excessive sentence. See Petitioner's Appellate Brief ("App. Br."); Respondent's ("Resp't") Ex. A. He also filed a pro se supplemental brief which was considered by the Appellate Division. See Resp't Ex. C. The Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction. People v. Beard, 1 A.D.3d 1052 (4th Dept. 2003); lv. denied 1 N.Y.3d 624 (2004).
C. Post-Conviction Relief
On March 11, 2004, petitioner moved the trial court to vacate his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10 on the grounds that: (1) the prosecutor adduced false evidence at trial; (2) the jury was not impartial; (3) petitioner's right to cross-examine witnesses was unlawfully curtailed; (4) Eighth Amendment violations; and (5) ineffective assistance of trial counsel. See Ex. H. The state court denied that motion, and leave to appeal the denial was denied by the Fourth Department on March 23, 2005. See Ex. K-N.
Petitioner filed his second motion for vacatur on September 18, 2005, alleging that trial counsel was ineffective for failing to adequately investigate his case. He enclosed an affidavit from James Wright ("Wright"), a mutual friend of the victim and petitioner who allegedly introduced the two. In the affidavit, Wright stated that he had never been in the same location with petitioner and the victim together. The county court again denied petitioner's motion, and leave to appeal was denied by the Fourth Department on May 4, 2006. See Ex. O-U.
Petitioner filed his third § 440 motion based on newly-discovered evidence, enclosing the same affidavit from Wright that was introduced in petitioner's previous motion to vacate. See Mot., No. 01-134 dated 8/14/08.
A fourth motion alleged ineffective assistance of trial counsel and a Brady violation by the prosecution. See Mot., No. 01-134 dated 11/14/08. Both of those motions were denied. See Memorandum-Decision No. 01-134 dated 1/5/09, Memorandum-Decision dated 4/3/09. The Fourth Department denied leave to appeal as to both motions. See Order, KA 09-00779, dated 11/30/09; Order, KA 09-01254, dated 12/7/09.
D. Petition for Habeas Corpus
Petitioner filed a timely petition for writ of habeas corpus before this Court, raising four grounds for relief (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) the trial court improperly limited the scope of cross-examination; and (4) selective prosecution. (Dkt. #1).
On November 20, 2008, petitioner filed a letter requesting that the petition be stayed and held in abeyance. (Dkt. #15). The Court denied petitioner's motion without prejudice upon a proper showing pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005).*fn2 On February 20, 2009, petitioner filed a "Renewed Motion for Stay and Abeyance", which included a second petition with two additional claims he sought to exhaust in state court. (Dkt. #17). The Court shall construe this as a motion to stay the petition and leave to amend the original petition. Because petitioner has exhausted his two additional claims in Wayne County Court, that portion of the motion seeking a stay (Dkt. #17) is denied.
With respect to the motion to amend, "[i]t is well-established that a district court should normally permit amendment absent futility, undue delay, bad faith or dilatory motive, or undue prejudice." Masotto v. United States, 205 F.3d 1323 (Table), No. 97-2894, 2000 WL 19096, at *2 (2d Cir. 2000) (citing Forman v. Davis, 371 U.S. 178, 182 (1962); Nerney v. Valente & Sons Repair Shop, 66 F.3d 25, 28 (2d Cir. 1995) (per curiam). To the extent that petitioner seeks to raise a claim of newly discovered evidence that establishes petitioner's innocence, the Court finds that amending the petition to include this claim would be futile under the Supreme Court's holding in Herrera v. Collins, 506 U.S. 391 (1993) (holding that a claim of actual innocence based on newly discovered evidence is not ground for federal habeas relief.). Similarly, petitioner's proposed Brady claim lacks merit, and leave to amend the petition to include this claim is also denied.*fn3 See Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (where there is no merit to a proposed amendment, leave to amend should be denied).
The Court will proceed to the merits of petitioner's four claims set forth in the original petition. (Dkt. #1).
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence ...