The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Curtis L. Gainey ("Gainey" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254 challenging his state-custody resulting from a judgment of conviction entered against him in Monroe County Court. Petitioner was indicted on numerous counts of incest (New York Penal Law ("P.L.") § 255.25), forcible rape (P.L. § 130.35(1)), and first degree sodomy (former P.L. § 130.50(1)), based upon allegations that the participated in sexual activities with his daughter beginning from the time that she was 12 years-old until she was 21; the actual charges against Petitioner only covered the time period from when his daughter was 17 years-old until she was until 21. At Petitioner's jury trial, his daughter testified that sexual encounters with her father began with contact when she was 12 years old, progressed to oral-genital contact, and then to intercourse on a weekly basis by the time she was in high school. The sexual activities continued through college. The daughter testified that Petitioner was a police officer and used his service weapon to ensure her compliance with his demands. The complainant testified that Petitioner told her that their activities was how fathers taught their daughters about sex; she initially believed him but later discovered that other girls did not engage in these activities with their fathers. She and Petitioner ultimately got into a crisis situation, and she reported him to the authorities.
The jury acquitted Gainey of the forcible rape and sodomy charges but convicted him of 18 counts of incest, a class E felony. The sentencing court imposed an indeterminate sentence of 1 to 20 years.
Petitioner's conviction was affirmed by the Appellate Division, Fourth Department, on February 11, 2004. The New York State Court of Appeals denied leave to appeal on May 11, 2004. Petitioner filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, alleging improper judicial conduct not appearing on the record; this application was denied.
On or about January 5, 2005, Petitioner brought a second motion pursuant to C.P.L. § 440.10 claiming the trial court erred in not charging the jury on the corroboration requirement and accomplice testimony. Petitioner's motion was denied by the trial court on October 18, 2005, and leave to appeal was denied by the Appellate Division, Fourth Department.
Gainey then timely filed this habeas petition (Docket Nos. 1, 13), in which he raised one ground for relief--that the trial court's refusal to dismiss allegedly defective counts of his indictment violated his Sixth Amendment right to be informed of the nature and cause of the accusations against him. According to Petitioner, several counts of his indictment lacked the requisite specificity in terms of the dates of the incidents. Respondent opposed the Petition, arguing that this claim, although exhausted, is without merit. (Docket No. 8).
In 2006, Petitioner subsequently filed a motion to amend his petition (Docket No. 14) to include his claim, unsuccessfully raised in his second C.P.L. § 440.10 motion, that the jury should have been provided an accomplice/corroboration charge. Respondent has opposed Petitioner's motion to amend. (Docket No. 16).
For the reasons that follow, Petitioner's motion to amend is denied with prejudice, Petitioner's request for a writ of habeas corpus is denied, and the Petition is dismissed.
II. Petitioner's Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure ("Rule 15") governs motions to amend a petition for a writ of habeas corpus. See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts; Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 814-15 (2d Cir. 2000). Rule 15 provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a). In this case, a responsive pleading was filed prior to Gainey's motion to amend. Consequently, since the respondent has not provided "written consent" to an amendment of the petition, "leave of court" is required. In the absence of any apparent or declared reason-such as 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 the allowance of the amendment, futility of the amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).
Respondent argues that amendment of the petition to add the claim that the trial court failed to properly instruct the jury regarding the requirement of "corroboration of accomplice testimony" is procedurally defaulted. This is because, respondent contends, the proposed amended claim was denied pursuant to C.P.L. 440.10(2)(c), which constitutes an adequate and independent state ground to preclude federal habeas review of the claim. (Docket No. 16). Respondent asserts that a federal court should not review a question of federal law decided by a state court if that decision is based on independent and adequate state substantive or procedural law, even where the state court declined to address the federal claims on the merits because the petitioner failed to meet state procedural law requirements. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-54 (1991) (federal habeas review is precluded if the decision of the state court rested on a state law ground that is independent of the federal question and adequate to support the judgment, unless the petitioner can show cause for the default and prejudice resulting therefrom, or that refusal to hear the federal claim would result in a fundamental miscarriage of justice).
Here, an amendment of the petition to add Gainey's jury instruction claim would be futile. Accord Perez v. Greiner, No. 00Civ.5504(RCC)(KNF), 2004 WL 2937795, at *3 (S.D.N.Y. Dec. 17, 2004) (denying motion to amend where petitioner's claims were futile as a result of a procedural default) (citing O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002) (holding that district court may deny leave to amend if amendment would be futile). "Under New York law, collateral review of a claim that could have been raised on direct appeal but was not, despite a sufficient record, is procedurally barred." Perez, 2004 WL 2937795, at *3 (citing N.Y. CRIM. PROC. LAW § 440.10(2)(c); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994)). In other words, Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record. See Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir.1995) (refusing to conduct federal habeas review where New York's appellate court found claim to be procedurally barred under C.P.L. § 440.10(2)(c)). In Gainey's case, the trial court denied the C.P.L. § 440.10 motion on the ground that the claim was record-based and so could have been reviewed on direct appeal, under C.P.L. § 440.10(2)(c). The Second Circuit has recognized C.P.L. § 440.10(2)(c) as an adequate and independent state ground sufficient to preclude federal habeas review of a state-court defendant's claims. E.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Aparicio v. Artuz, 269 F.3d at 91(2d Cir. 1991).
Because this claim is procedurally barred it may be reviewed in this Court only upon a showing by petitioner of cause for the default and prejudice to him or that a fundamental miscarriage of justice would attend if his claim was not reviewed. Wainwright v. Sykes, 433 U.S. 72, 87, 91 (1977). A habeas corpus petitioner may demonstrate cause for a procedural default by "showing that the factual or legal basis for a claim was not reasonably available to counsel... or that 'some interference by officials,' made compliance impracticable... [or that] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986). A fundamental miscarriage of justice exists where a person has been convicted who is "actually innocent." Murray, 477 U.S. at 496. Petitioner has presented no other evidence to the Court that would establish cause for his default or prejudice to him, or that a fundamental miscarriage of justice would attend if this claim were not reviewed. Therefore, because it is extremely doubtful that petitioner can overcome the procedural hurdle facing him as a result of the state court's reliance upon C.P.L. § 440.10(2)(c) as an adequate and independent state ground to deny the proposed new claim, amendment of the petition to add the claim would be futile. Accord, e.g., Perez v. Greiner, 2004 WL 2937795, at *4; Beverly v. Walker, 899 F. Supp. 900, 908 (N.D.N.Y.1995) ("Because the state court made an adequate and independent finding of procedural default, and because petitioner has not made any attempt to show cause or prejudice, this Court will not review his claim. Accordingly it would be futile to allow petitioner to amend his habeas petition."); Bradley v. LaClair, 599 F. Supp.2d 395, 406 (W.D.N.Y. 2009) (report and ...