The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Jamar Jones ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court of Murder in the Second Degree (N.Y. Penal L. § 125.25(1)), Attempted Murder in the Second Degree (N.Y. Penal L. §§ 110.00, 125.25(1)), Assault in the Second Degree (N.Y. Penal L. § 120.10(1)), and Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)) following a jury trial before Judge Shirley Troutman.
II. Factual Background and Procedural History
On May 2, 2005, petitioner shot at Courtney Meadows ("Meadows" and James Webster ("Webster") following a confrontation. Meadows was shot in the head, the back, and twice in the chest, and subsequently died from his injuries. Webster survived the attack, and testified at petitioner's trial. Two witnesses to the shooting, Ronald Showers and Nathaniel Harris, identified petitioner in a police photo array and also testified for the prosecution. Trial Tr. 377-79, 388, 400-05, 463-70, 472, 553, 646, 654, 650; Wade Hr'g Tr. 7-8, 18, 28-29.
Petitioner was sentenced on January 18, 2006, to aggregate terms of imprisonment totaling 50 years to life. Sentencing Tr. 9-10.
Through counsel, petitioner filed a brief with the Appellate Division, Fourth Department, in which he raised the following points for appeal: (1) the trial court denied petitioner a fair trial by allowing the prosecution to prove uncharged crimes;
(2) petitioner was denied a fair trial when the court allowed the prosecution to introduce prejudicial photographs into evidence;
(3) the pre-trial identification procedure was unduly suggestive; and (4) the sentence was unduly harsh and excessive. See Pet'r Appellate Br. The Appellate Division unanimously affirmed the judgment of conviction on September 28, 2007. People v. Jones, 43 A.D.3d 1296 (4th Dept. 2007), lv. denied, 9 N.Y.3d 991 (2007). This habeas petition followed in which petitioner has asserted the following grounds for relief: (1) denial of a fair trial by the trial court's ruling allowing evidence of uncharged crimes; (2) denial of a fair trial by the admission of inflammatory photographs; and (3) denial of due process by an unduly suggestive pre-trial photo array.*fn1 (Dkt.#1). Respondent answered the petition and submitted a memorandum of law. (Dkt.##7, 8). Petitioner then filed a motion for an extension of time to file a motion to stay the habeas proceedings. (Dkt.#9). Shortly thereafter, petitioner filed a series of motions with the Court, the first requesting an enlargement of time to file his memorandum of law in support of the habeas petition. (Dkt.#10). The next motion requested that the Court hold his petition in abeyance in order for petitioner to return to state court to exhaust unexhausted claims of ineffective assistance of counsel. (Dkt.#11). Petitioner also moved to amend his petition to add additional claims. In conjunction with that motion, petitioner attached a proposed amended petition containing sixteen grounds for relief, all alleging various infirmities in both his trial and appellate counsel's performance. (Dkt.#12).
For the reasons that follow, petitioner's motion to extend his time to file a memorandum of law (Dkt.#10) is granted. Petitioner's motions to invoke the stay-and-abeyance procedure and to amend the petition (Dkt.##11, 12) are denied, and the motion for an extension of time to file a motion for a stay (Dkt.#9) is denied as moot.
Where, as here, a petitioner seeks to add new claims to his habeas petition once the statute of limitations under 28 U.S.C. § 2244(d)(1), has expired, the petitioner is required to show that the amendments "relate back" to the claims in the original petition. Fed.R.Civ.P. 15(a); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000). An amendment relates back if the claim that is sought to be added "arose out of the conduct, transaction, or occurrence set forth" in the original petition. Fed. R. Civ. P. 15(c)(2). In making this determination, the court must find that the original petition "gave the defendant fair notice of the newly alleged claims." Id. (citing Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir. 1998)). In Mayle v. Felix, 545 U.S. 644, 656 (2005), the Supreme Court rejected the proposition that a petitioner's "trial, conviction, or sentence" constitute the "conduct, transaction, or occurrence" contemplated by Rule 15. To hold otherwise, the Supreme Court found, would mean that all proposed amendments would "relate back" for purposes of Rule 15(c). Id. at 657 ("[V]irtually any new claim introduced in an amended petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto.") (citation omitted). Instead, the Supreme Court elected to limit the definition of "conduct, transaction, or occurrence" as follows: "So long as the original ...