The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
REPORT AND RECOMMENDATION
This case has been referred to me by Hon. William M. Skretny pursuant to 28 U.S.C. §636(b)(1) to conduct all proceedings necessary to determine the factual and legal issues presented, and for preparation of a Report and Recommendation .*fn1 Before me are petitioner's motions to hold the case in abeyance and to amend the petition [26, 27]. For the following reasons, I recommend that the motions be granted.
Petitioner, currently an inmate at the Attica Correctional Facility, was convicted on September 13, 2006, in Genesee County Court, State of New York, on counts of Assault in the First Degree, Attempted Assault in the First Degree, and Criminal Possession of a Weapon in the Third Degree. He was sentenced as a second felony offender to a determinate term of imprisonment of twenty years on the assault conviction and ten years on the attempted assault conviction, and to an indeterminate term of three and one-half to seven years on the weapons conviction. The conviction was affirmed on direct appeal, People v. Johnson, 50 A.D. 2d 1537 (4th Dep't. 2008), lv. denied, 10 N.Y.3d 935 (2008).
Petitioner has filed a petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. §2254 , arguing that the prosecution did not establish an essential element of the offenses of assault and attempted assault in the first degree, namely "serious physical injury"; that the prosecution failed to establish by legally sufficient evidence that petitioner caused the injury -- i.e., petitioner's identification as the perpetrator was not established with legally sufficient evidence; that the verdict was against the weight of the evidence; that the prosecutor made improper remarks during summation; that petitioner was denied effective assistance of trial counsel when trial counsel: (a) failed to call as a witness at trial to impeach the prosecution's witnesses a private investigator retained by the defense whom interviewed witnesses and obtained statements from them, (b) failed to object to a number of the improper remarks made by the prosecutor during summation, and (c) failed to raise "specific arguments relative to the each of the counts," particularly the lack of evidence of serious physical injury, and failed to renew a challenge to the sufficiency of the evidence at the close of the defense's case; and finally, that the sentence imposed was harsh and excessive. Petition , ¶ 22, pp. 7-8(D). Respondent filed an answer and memorandum of law in opposition to the petition [15 and 16].
Petitioner subsequently filed these motions, which I construe together as both a motion to hold the petition in abeyance, and a motion to amend the petition.*fn2
A. Petitioner's Motion to Stay
Given the requirement that §2254 habeas petitioners first exhaust state judicial remedies (28 U.S.C. §2254(b)(1)(A); Daye v. Attorney Gen. of New York, 696 F. 2d 186, 191 (2d Cir.1982) (en banc)), and the procedural limitations (including the one-year period of limitations on filing petitions and the bar on second and successive petitions) which are imposed on habeas petitions by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. §2244(b) and 2244(d)(1), it has been recognized that the dismissal of a petition containing exhausted and unexhausted claims - i.e., a "mixed petition"- "could jeopardize the timeliness of a collateral attack." Zarvela v. Artuz, 254 F. 3d 374, 379-82 (2d Cir. 2001). In order to ameliorate this harsh result, the Second Circuit has adopted a "stay and abeyance" procedure for petitions presenting exhausted and unexhausted claims. Id. at 280. The Supreme Court has endorsed a similar procedure, with limitations, in Rhines v. Weber, 544 U.S. 269 (2005).
In Rhines, the Court held that a district court should grant a stay when it finds  "good cause" for petitioner's failure to exhaust his claims prior to filing the petition,  that the unexhausted claims are "potentially meritorious," and  that there is no indication that the petitioner "engaged in intentionally dilatory litigation tactics". 544 U.S. at 277-78. The Court, however, failed to define "good cause", and lower courts have provided various definitions. See, e.g., Fernandez v. Artuz, 2006 WL 121943, *5 (S.D.N.Y. 2006) (collecting cases);Ramdeo v. Phillips, 2006 WL 297462, *5 (E.D.N.Y. 2006) ("Most of the courts which have thus far engaged in an in-depth analysis of the issue have required that good cause arise from something external, and not fairly attributable, to the petitioner"); Brown v. Ebert, 2006 WL 1273830, *3 (S.D.N.Y. 2006) (a petitioner who is "reasonably confused" about whether his claims have been properly exhausted in state court has shown good "good cause").
The nature of the claim which petitioner seeks to exhaust and then add to the petition is not entirely clear. Petitioner appears to ask to stay the petition so that he can now exhaust his state judicial remedies with respect to a claim that his trial counsel was ineffective for failing to fully investigate, through medical records and other evidence, a head injury which he allegedly suffered a few days prior to the assault at issue, and to then call medical witnesses to testify as to how the head injury contributed to the commission of the assault. Petitioner's motion  ¶¶14-21, 24-26, and 30-33. Specifically, ¶14 of petitioner's motion  states: "petitioner has had another aspect of ineffective assistance of counsel identified [for] him. It's related to the medical records and counsel's failure to pursue a viable defense and put potentially exculpatory evidence before the jury. This was an issue not raised before any state court, and is a matter brought to my attention by a Law Clerk at the Attica Correctional Facility Law Library."
At first blush it appears that the claim petitioner seeks to exhaust is an ineffective assistance of appellate counsel claim, based on appellate counsel's failure to raise on direct appeal the claim that trial counsel was ineffective for failing to investigate the head injury and then present medical proof regarding the head injury at trial. Id., ¶¶10, 32-33. In fact, this is how petitioner's motion is construed by respondent's counsel in her declaration in opposition to the motion. , ¶5.
However, petitioner's reply further supports the construction of the "new" claim as ineffective assistance of trial counsel, based on a failure to offer medical evidence in relation to petitioner's head injury; a defense petitioner claims was a valid alibi defense: "Respondent misapprehended [sic] the facts . . . that appellate counsel was ineffective where the record shows that Petitioner seeks to exhaust in the state court and claim that trial counsel was ineffective for failure to present expert witness testimony to substantiate the medical records that Petitioner was incapable of committing the crime that he [was] charged with." .
What makes petitioner's papers further confusing is that he appears to be arguing that the "good cause" for his failure to exhaust the ineffective of trial counsel claim, see Rhines, 544 U.S. at 277, was his appellate counsel's failure to raise on direct appeal this additional ineffective assistance of trial counsel claim or, as petitioner states: "the conduct of Appellate Counsel in putting forth an issue without submitting to the lower courts any evidence[ ] to support the issue in any manner or form that they raised in their brief." Petitioner's motion , ¶32. To further support the construction that the claim petitioner seeks to exhaust is an ineffective assistance of trial counsel claim related to the medical evidence issue, petitioner states that he "understands that ...