The opinion of the court was delivered by: David G. Larimer United States District Judge
Pro se petitioner Gregory Borcyk has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his July 6, 2005, conviction in Monroe County Court on charges of second degree murder. Borcyk has raised three grounds for habeas relief in his Petition (Docket #1): (1) trial counsel was ineffective in failing to investigate a 911 call concerning the identity of the real killer (Petition, ¶22(A); (2) trial counsel was ineffective in failing to present allegedly exculpatory DNA evidence found on the victim's body and at the crime scene, which purportedly matched "an unknown male" (Petition, ¶22(A); (3) trial counsel was ineffective in failing call one Tina Brown, who allegedly would have testified that a man named Reinaldo Torres confessed to her that he killed the victim (Petition, ¶22(B); (4) trial counsel denied petitioner his constitutional right to testify, by persuading him that he should not testify since the prosecution could cross-examine him concerning a prior conviction by guilty plea for his involvement in a bank robbery (Petition, ¶22(C)). See Docket #1.
Prior to respondent answering the Petition, Borcyk moved for a stay in order to return to state court to re-present two of his claims of ineffective assistance of trial counsel which he believes to be unexhausted. See Petitioner's Motion for a Stay ("Stay Mot.") at 1-2 (Docket #5). Respondent filed a Declaration in opposition to the stay. (Docket #6). Petitioner has filed a reply brief. (Docket #8).
The first claim that Borcyk wishes to return to state court to re-litigate is his contention that trial counsel was ineffective in failing to investigate an anonymous 911 phone call. This claim was raised in petitioner's C.P.L. § 440.10 motion to vacate the judgment. The County Court stated that Borcyk's papers were inadequate because he did not include an affidavit from trial counsel or from anyone else with personal knowledge of whether trial counsel investigated the anonymous phone call to 911. Stay Mot. at 1 (Docket #5). In denying the claim, the County Court relied upon C.P.L. § 440.30(4)(b) ("Upon considering the merits of the motion, the court may deny it without conducting a hearing if:... (b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one;...."). Borcyk states that he fears that this holding based upon C.P.L. § 440.30(4)(b) is a procedural bar. Id. However, habeas courts in this Circuit, and in particular this District, have found that "this rule applies, by its own terms, when a trial court denies a § 440.10 motion '[u]pon considering the merits of the motion,'" and therefore "a denial pursuant to § 440.30(4)(b) should be considered a decision on the merits, which cannot serve as a procedural bar to a federal habeas claim." Russillo v. Mellas, No. 03-CV-792S, 2007 WL 748437, at *8 (W.D.N.Y. Mar.7, 2007) (adopting report and recommendation) (alteration in original) (citations omitted); accord White v. Greene, No. 05-CV-0545(VEB), 2010 WL 2104290, *1 n.1 (W.D.N.Y. May 24, 2010).
Although petitioner seems to assume that the claim must be re-litigated in a second C.P.L. § 440.10 motion, the Court notes that respondent has not directly argued that this claim is unexhausted. And, it is not entirely clear that Borcyk needs to re-present this claim to the state courts. It is true that "to reach the merits of [an ineffective representation claim], all of [the] allegations must have been presented to the state courts, allowing them the 'opportunity to consider all the circumstances and cumulative effect of the claims as a whole.' " Sanford v. Senkowski, 791 F.Supp. 66, 68 (E.D.N.Y.1992) (quoting Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir.1991) (citing Grady v. LeFevre, 846 F.2d 862, 865 (2d Cir.1988)). However, additional factual allegations that do not "fundamentally alter the legal claim already considered by the state courts," Vasquez v. Hillery, 474 U.S. 254, 260 (1986), are not required to be presented to the state court prior to their being reviewed on federal habeas. Cf. Jackson v. Kuhlman, No. CV-94-5934 (JG), 1997 WL 1068667, at *10 (E.D.N.Y. May 22, 1997) ("If a petitioner raises precisely the same legal claims in state and federal proceedings, reliance in the two proceedings upon different factual grounds that 'fundamentally alter the legal claim already considered by the state courts" will foreclose the conclusion that the claims are exhausted. Vasquez v. Hillery, 474 U.S. [at] 260....'). Arguably, the proposed new factual grounds do not "fundamentally alter the legal claim" of ineffective assistance already considered by the C.P.L. § 440.10 court concerning counsel's alleged failure to investigate a 911 call.
However, assuming that Borcyk were to return to state court and bring a new C.P.L. § 440.10 motion, the Court does not agree with respondent that the stay motion"would be futile because petitioner will be precluded by adequate and independent state law grounds from relitigating" the issue of trial counsel's failure to investigate an anonymous 911 phone call. Respondent's Declaration in Opposition to Stay Application ("Resp't Decl."), ¶3 (Docket #6). Respondent asserts that petitioner, "[h]aving failed to come forward the first time with sufficient proof, [he] will be barred by CPL 440.10(3)(c) and 440.30(1)*fn1 from succeeding on a second motion when there is no good cause for petitioner's failure to not include the purported new materials with his original motion." Resp't Decl., ¶3 (Docket #6).
C.P.L. § 440.10(3)(c) provides that "[n]otwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:... (c) [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." N.Y. C RIM. P ROC. L AW § 440.10(3)(c). While CPL § 440.10(3)(c) provides that a state court "may deny" a motion to vacate where "[u]pon a previous motion... the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so," such denials are discretionary and do not impose an absolute bar on successive motions." Bonilla v. Portuondo, 2004 WL 350694, at *15 (citing Gibbs v. State of New York, No. 01 Civ. 5046, 2002 WL 31812682, at *2-3 (S.D.N.Y. Dec. 12, 2002) (failure to exhaust ineffective assistance claim does not create procedural bar in light of CPL § 440.10(3)(c)); Marchese v. Senkowski, No. 97 Civ.2055, 1999 WL 731011, at *6 n. 4 (E.D.N.Y. Sept. 15, 1999) (same)); accord Affser v. Murray, No. 04 CV 2715, 2008 WL 2909367, at *4 (E.D.N.Y. July 28, 2008) ("But those claims [of ineffective assistance of trial counsel] are not necessarily defaulted. Petitioner could raise them in yet another motion to vacate, and under § 440.10(3)(c) the state court could, in its discretion, review the claims on their merits despite petitioner's failure to assert them in his previous motion to vacate."); see also Reyes v. Phillips, 02 Civ. 7319, 2005 U.S. Dist. LEXIS 19488, *14-18, 2005 WL 2173812 (S.D.N.Y. Sept. 6, 2005) (holding that because section 440.10(3)(b) was discretionary, the court was not prepared to hold that petitioner could not return to file a second section 440.10 motion); but see Caicedo v. Garvin, No. 95 CV 3896(SJ), 1999 WL 221648, at *2 (E.D.N.Y. Apr. 9, 1999) ("In this case, Petitioner's unexhausted Sixth Amendment claim [of ineffective assistance of trial counsel] should be deemed exhausted because his failure to raise it in his § 440.10 motion bars further review in state court.") (citing N.Y. C RIM. P ROC. L AW § 440.10(3)(c)). Thus, I disagree with the respondent's argument that C.P.L. § 440.10(3)(c) requires a finding of "deemed exhausted--procedurally defaulted".
It should be noted that the Second Circuit held in 2007 that the statutory grants of discretion in C.P.L. § 440.10(3)(b) and § 440.10(3)(c) do not prevent either section from operating as a procedural bar. Murden v. Artuz, 497 F.3d 178, 193 (2d Cir.2007), cert. denied sub nom. Murden v. Ercole, 2008 U.S. LEXIS 1023, 2008 WL 114166 (Jan. 14, 2008). In contrast to the situation where respondent's argument is that a claim should be "deemed exhausted and procedurally defaulted" under C.P.L. § 440.10(3)(c), the Murden court "was faced with a 'decision' from the state court, basing its denial of a subsequent motion on a discretionary procedural default." Perez v. Perrott, No. 9:04-CV-327, 2008 WL 2323360, at *7 (N.D.N.Y. June 2, 2008) (citing Murden, 497 F.3d at 193)). Thus, "[t]he issue in Murden was the adequacy of the procedural default, and whether state rule was 'firmly established and regularly followed.'" Id. (quoting Murden, 497 F.3d at 192).
Here, this Court doubts that the court would consider a second C.P.L. § 440.10 by Borcyk. The state court likely would find no reason why Borcyk, at the time of the first motion, could not have obtained some kind of statement from his trial counsel about his actions or inaction concerning the 911 call. However, the Court "cannot say with certainty, under the circumstances presented here, that petitioner could not return to state court, and thus, this claim would not be [deemed exhausted and] procedurally defaulted." Perez v. Perrott, 2008 WL 2323360, at *7. Petitioner should be aware, however, that if he files another C.P.L. § 440.10 motion, it may be denied on the basis of C.P.L. § 440.10(3)(c), which the Second Circuit has held may operate as a procedural bar to subsequent habeas review.
Respondent's use of two cases from this District, Corchado v. Rabideau, 576 F. Supp.2d 433, 455 (W.D.N.Y. 2008) (Bianchini, M.J.), and Hernandez v. Conway, 485 F. Supp.2d 266, 275-76 (W.D.N.Y. 2007) (Bianchini, M.J.), is inapposite. Neither of those cases involved C.P.L. § 440.10(3)(c) specifically, and they do not stand for the proposition that a claim should be "deemed exhausted but procedurally defaulted" under C.P.L. § 440.10(3)(c).
Finally, the Court turns to Borcyk's second claim that he wishes to re-litigate by way of a second C.P.L. § 440.10 motion--that trial counsel rendered ineffective assistance by failing to present any evidence of the police investigation of petitioner's vehicle. See Stay Mot. at 1 (Docket #5). I note that respondent does not address this claim at in his opposition papers, treating Borcyk's motion to stay as pertaining only to the ineffectiveness claim regarding the 911 call.
Borcyk indicates that when he raised this second ineffective assistance claim in his C.P.L. § 440.10 motion, the County Court held that the argument was "readily apparent upon the record, and therefore, should [be] raised on... appeal." Id. (quoting Decision and Order on C.P.L. § 440.10 Motion at p. 3) (Docket #5); see N.Y. Crim. Proc. Law § 440.10(2)(c).*fn2 However, Borcyk explains, he previously had raised it on direct appeal, and the ...