The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Richard C. Brink ("Brink" or "petitioner") has filed a pro se habeas corpus application pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Respondent has answered the Petition. Presently pending before the Court is Brink's pro se Motion to Stay (Docket No. 25). Respondent has not responded to the Motion to Stay.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(c)(1), for the purpose of, inter alia, hearing and deciding non-dispositive motions and issuing a report and recommendation concerning the disposition of Brink's Petition. For the reasons that follow, Brink's Motion to Stay is denied with prejudice.
A. State Court Proceedings
Petitioner's state custody arises from a judgment of conviction entered on April 20, 2004, in New York State Supreme Court, Livingston County, convicting him, after a jury trial, of Robbery in the First Degree (New York Penal Law (hereinafter "Penal Law") § 160.15(2)), Robbery in the Second Degree (Penal Law § 160.10(1)), Burglary in the First Degree (Penal Law § 140.30(1)), Unlawful Imprisonment in the Second Degree (Penal Law § 135.05), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(2)), and Petit Larceny (Penal Law § 155.25). The charges stemmed from a home-invasion-type robbery committed by petitioner and several accomplices in the Town of Avon in Livingston County. Petitioner was sentenced to a determinate term of twenty-five years imprisonment and five years post-release supervision on both the first-degree robbery and burglary convictions, fifteen years imprisonment and five years post-release supervision on both the second-degree robbery and criminal possession of a weapon convictions, and one-year imprisonment on both the petit larceny and the unlawful imprisonment convictions, with all sentences to run concurrently. Petitioner's conviction was affirmed by the Appellate Division, Fourth Department, and leave to appeal to the New York Court of Appeals was denied. People v. Brink, 31 A.D.3d 1139 (4th Dept. 2006), lv. denied, 7 N.Y.3d 865 (2006). Petitioner is currently incarcerated at the Clinton Correctional Facility pursuant to this judgment of conviction.
In the instant habeas Petition, Brink asserts the following claims for relief: (1) the court's exclusion of an alibi witness violated petitioner's Sixth Amendment rights; (2) uncharged crimes and bad acts evidence violated his right to a fair trial; (3) the mug shot photo introduced at trial violated petitioner's due process rights; (4) the prosecutor improperly cross-examined petitioner's alibi witness with "irrelevant" uncharged crimes; (5) the prosecutor's rebuttal of petitioner's alibi witness deprived petitioner of a fair trial; (6) the trial court failed to give proper jury charges; (7) the prosecutor introduced improper evidence that demonstrated petitioner's "propensity" for violence; (8) the prosecutor improperly referenced matters not in evidence; (9) prosecutorial misconduct in the summation; (10) petitioner received the ineffective assistance of counsel; and (11) the pre-trial hearing court erred in suppressing the evidence. In an "addendum" to the Petition, dated March 18, 2008, petitioner claimed that he received the ineffective assistance of appellate counsel.
1. Petitioner's Allegations in the Motion to Stay
Brink states that he had two state trials and two state convictions; the second conviction is the subject of the instant habeas Petition. According to Brink, the first conviction and trial "took place some years before the second, but because of a five years [sic] in assigned counsel preparing an appeal brief, the second conviction is well ahead of the first." He asserts in his Motion to Stay that this could be a "matter of first impression" because "counsel's trial and pretrial errors in the first proceeding, have actually caused severe prejudice to the second proceeding." He states that "his personal property was illegally seized on a warrant in the first proceeding, yet counsel never challenged the impression by moving for a suppression hearing," which "allowed the Livingston County prosecutor (the first conviction was in Monroe County) to use the fruits of the illegal seizure at the subsequent proceeding taking place a year later." However, petitioner continues, when the suppression hearing was held during the second proceeding (the one at issue in this habeas proceeding), "the prosecutor's argument was that the warrant was legal" because "it had already been upheld in Monroe County" during the first proceeding. Id. Brink contends that trial counsel in the first (Monroe County) proceeding thus was ineffective in failing to seek suppression of the allegedly illegally seized property; had he sought a suppression hearing, Brink reasons, the prosecutor in the Livingston County proceeding would not have been permitted to utilize said evidence.
2. Applicable Legal Principles and Analysis
In order for Brink's motion to stay to make sense, it must also request permission to amend the petition to add his new claim. A habeas petitioner's motion to amend his habeas petition is governed by Federal Rule of Civil Procedure 15(a). Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); see also Fama v. Commissioner of Corr. Srvs., 235 F.3d 804, 815 (2d Cir. 2000). Where, as here, a responsive pleading has been served, leave to amend is required. FED. R. CIV. P. 15(a). Although leave to amend shall be "freely given," FED. R. CIV. P. 15(a), "district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive." Littlejohn, 271 F.3d at 363 (citing Foman v. Davis, 371 U.S. 178, 182 (1962) (listing "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment" as valid reasons for denying leave to amend)); accord, e.g., Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995); Weeks v. New York State Div. ...