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Michael Ortiz, Pro Se v. Philip D. Heath

April 6, 2011


The opinion of the court was delivered by: Matsumoto, United States District Judge:



Pro se petitioner Michael Ortiz ("petitioner") is incarcerated pursuant to a judgment of conviction for Manslaughter in the First Degree imposed in Supreme Court, Kings County. (See ECF No. 1, Petition ("Pet.").) Alleging that his state custody violates his federal and constitutional rights, petitioner seeks relief by means of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Now before the court is petitioner's motion to withdraw the petition, return to state court and exhaust his unexhausted claims, and then file a second habeas petition. The court construes petitioner's "stay petition," as discussed below, as a motion to amend the petition as well as an application to invoke the stay-and-abeyance procedure. (See ECF No. 6, Motion for a Stay ("Pet'r Stay Mem."); 9, Opposition to Petitioner's Motion for a Stay ("Resp. Stay Opp."); 10, Reply to Respondent's Opposition to Petitioner's Request for a Stay ("Pet'r Reply Mem.").) For the reasons that follow, petitioner's motions to amend and stay the petition are denied, and the petition is denied in its entirety.


Petitioner's conviction and sentence, and hence, this petition, stem from the January 25, 2004 death of Edward Santos ("Santos") from four stab wounds. In connection with Santos' death, petitioner was arrested and charged with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25[1], 125.25[2]) and Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01[2]). (See ECF No. 4, Affirmation of Howard B. Goodman in Opposition to Petition for a Writ of Habeas Corpus dated 7/7/10 ("Goodman Affirm.") at ¶ 5.)

I.The Trial

Petitioner's case was tried to a jury in Supreme Court, Kings County. (See generally ECF No. 4 Exs. 1-8, Trial Transcript 1-713.) At trial, the prosecution presented two eyewitnesses who described an attack on Santos on the night of his death. (See id.) In addition, the prosecution introduced testimony from investigating law enforcement officers and a medical examiner, and the defense called one witness. (See id.)

Eyewitness Jose Manual Britto ("Britto"), a livery cab driver, testified that as he was driving his car in Brooklyn shortly before 1:00 a.m. on January 25, 2004, he witnessed the victim, later identified as Santos, being attacked by a group of ten to twelve people. (Tr. 540, 557, 559, 566-67.) Although it was dark, Britto testified that the scene was illuminated by streetlights and his headlights and that as he passed by, he observed the victim on the ground and the faces of some of the attackers, including the face of one man near the victim who took something in his hand and wrapped it in what appeared to be a shirt. (Id. at 540-42, 545, 567, 570-73, 572, 581-85.) After turning his car around and passing back by the scene, Britto testified that he screamed and honked his horn and the group dispersed. (See id. at 542.)

Eyewitness Larry Petrano ("Petrano") also testified that he observed the same incident from his third floor apartment window until the attackers scattered and the victim staggered down the street and collapsed. (Id. at 446-48, 451-52, 454, 456-59.) Petrano also testified that he saw a taxicab stop at the scene for a matter of seconds before continuing on. (Id. at 455.)

The testimony at trial showed that nearly seven months after Santos' death, Britto identified petitioner in a lineup as one of the individuals that assaulted Santos, and specifically, the individual whom he had seen wrap an unknown object into what appeared to be a shirt. (See id. at 544.) At the trial two years later, however, Britto was unable to identify petitioner Ortiz. (See id. at 545). Petrano viewed the same lineup containing petitioner but did not identify anyone. (Id. at 368, 408-09, 451-52, 468-71.)

In addition to the eyewitness testimony, the prosecution presented evidence from the investigating New York City Police officers who responded to the scene and discovered Stantos lying bloody and unconscious on the ground. (See id. at 313-16.) The officers testified that Santos was immediately taken to the hospital where he died later that night. (Id. at 314-16, 321.) The responding officers further testified that earlier that evening, they had responded to a radio call of an assault in progress which involved Santos and another man, Danny Lugo ("Lugo"). (Id. at 281-84, 287-88, 294-97, 300, 311-12, 322-26, 345.) However, when the officers arrived at the scene, the altercation was over and, after citing Santos and Lugo for minor infractions, Santos was escorted outside the building. (Id.)

The prosecution also presented testimony from the investigating New York City Police Department detective, Kevin Buell ("Detective Buell"), who testified that in August 2004, nearly seven months after Santos' death, Buell interviewed petitioner in connection with the murder. (Id. 354-56, 393-94, 399, 426.) Detective Buell testified that when questioned about Santos' murder, petitioner gave several contradictory accounts.

According to Detective Buell, first petitioner asserted that petitioner was in Florida on the night of Santos' death (id. at 359-60) and later petitioner made a written statement that petitioner was in fact at the scene that night but was observing from across the street and saw someone using a knife, and that petitioner left the area and returned to find Santos on the ground injured (id. at 362). Eventually, after being informed several days later that an eyewitness had identified petitioner in a lineup, petitioner made oral, written, and videotaped statements to the effect that the eyewitness had likely identified petitioner because petitioner, in fact, had been at the scene and had tried to break up the fight involving Santos and another individual named Jason Roman ("Roman"). (Id. at 372-75, 434-38.) In his written and videotaped statements, petitioner further stated that he then left the scene when things were calm only to return later to find Santos injured and officers on the scene. (Id.)

According to Detective Buell, petitioner identified Roman as the individual Santos was arguing with in a photograph of Roman provided by Detective Buell. (Id. at 376.) The prosecution then introduced evidence that Roman was incarcerated in a New York State prison at the time of Santos' death on January 25, 2004. (Id. at 497-98.)

Finally, medical examiner Dr. Carolyn Kappen also testified at trial on behalf of the prosecution. (Id. at 512-24.) Dr. Kappen stated that the autopsy revealed the cause of Santos' death to be four stab wounds to the chest, and that she believed the murder weapon was a "very long, narrow-type object" such as a screwdriver or icepick. (Id. at 512-14, 519-21.)

At the conclusion of the prosecution case, the defense called a single witness, Stephanie Perez ("Perez"), the girlfriend of the deceased. (Id. at 596-618.) Perez testified that the evening of Santos' murder, Santos had come to see Perez where she was staying at a friend's apartment. (Id. at 599.) Because Perez had been arguing with Santos, however, she did not want to see Santos and she asked Lugo, who was also staying at the apartment, to tell Santos that Perez was not there. (Id. at 598-602.) This led to verbal fighting between Santos and Lugo through the apartment door. (Id. at 602.) Perez testified that she then saw Lugo take an unknown number of kitchen knives from the kitchen and try to open up the apartment's fire escape window, and that Lugo told Perez that "he was going to stab that mother f***er," referring to Santos. (Id. at 602-03.) According to Perez, Lugo then left the apartment with the knives, and she heard the two fighting and wrestling in the hallway through the apartment door. (Id. at 614-15.) Perez further testified that Lugo returned to the apartment with the knives a short time later, after the police were called to the scene of the fight and issued Lugo and Santos tickets for minor infractions. (Id. at 603-05.)

II.Conviction and Sentence

At the conclusion of the trial, the court submitted for the jury's consideration charges of Murder in the Second Degree and Manslaughter in the First Degree, and the jury convicted petitioner of Manslaughter in the First Degree (N.Y. Penal Law § 125.20[1]). (Id. at 677-80, 708-10; see also Goodman Affirm. at ¶ 6.) Petitioner was sentenced on June 13, 2006 to fifteen years' imprisonment and five years post-release supervision and is currently incarcerated pursuant to this sentence. (Goodman Affirm. at ¶¶ 6-7, 11.)

III.Post-Trial Appeals in State Court

Petitioner was appointed new counsel for his direct appeal to the Appellate Division, Second Department, and appealed his conviction to that court on grounds that: (1) his conviction was against the weight of the evidence as the State had failed to prove his guilt beyond a reasonable doubt, and (2) the sentence imposed was excessive. (Pet. at ¶¶ 9, 16; Goodman Affirm. at ¶ 8.) The Second Department affirmed petitioner's conviction on April 28, 2009, and petitioner's subsequent application for leave to appeal to the New York Court of Appeals was denied on August 12, 2009. See People v. Ortiz, 61 A.D.3d 1003, 880 N.Y.S.2d 77 (N.Y. App. Div. 2d Dep't 2009); People v. Ortiz, 13 N.Y.3d 748, 886 N.Y.S.2d 102 (2009).

Ninety days later, in November 2009, when petitioner's time for filing a petition for a writ of certiorari expired, petitioner's conviction became final -- and the one year statute of limitations for filing a habeas petition thus began to run. See 28 U.S.C. § 2244(d)(1) (applying a one-year period of limitation to habeas petitions running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"); see also Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (concluding that "direct review" as used in Section 2244(d)(1)(A) "includes direct review by the United States Supreme Court via writ of certiorari, and that the limitations period for state prisoners therefore begins to run only after the denial of certiorari or the expiration of time for seeking certiorari"). The one-year habeas statute of limitations in this case therefore ran from November 12, 2009 until November 11, 2010.

IV.The Instant Petition

On March 31, 2010, petitioner timely filed the instant petition for habeas corpus. (See generally Pet.) In his petition, petitioner sought relief on the same two grounds raised on direct appeal in state court: (1) that the conviction was against the weight of the evidence in violation of petitioner's Fourteenth Amendment rights, and (2) that petitioner's sentence was excessive in violation of petitioner's Eighth Amendment rights. (See id.) In response to this court's order to show cause (see ECF No. 2, Order dated 4/7/10), Respondent Philip D. Heath ("respondent") filed his responsive pleading to the petition on July 7, 2010 (see ECF No. 4, Response to Order to Show Cause ("Resp. Pet. Opp.")).

On July 17, 2010, still within the one-year statute of limitations period for his habeas claims, petitioner filed a letter motion seeking a stay of the petition in order to allow petitioner to return to State court and exhaust certain additional claims.*fn1 (See Pet'r Stay Mem.) Respondent opposed petitioner's motion for a stay, arguing that petitioner had failed to show good cause why his claims were not previously exhausted in state court, and failed adequately to articulate his claims and show that such claims were "not meritless." (See Resp. Opp. Mem.)

Petitioner then filed a reply and attached a copy of a motion to vacate his sentence which he indicated was ready for filing in state court pursuant to New York Criminal Procedure Law Section 440.10 ("proposed 440 Motion"). (See Pet'r Reply Mem.; see also ECF No. 10-2, Pet'r 440 Mot.) In his proposed 440 Motion, petitioner seeks to raise before the state court additional, previously unexhausted claims of: (1) ineffective assistance of trial counsel based upon counsel's alleged failure to (i) investigate the crime, (ii) prepare and effectively cross-examine a defense witness, (iii) timely object to the trial court's failure to swear the court interpreter, and (iv) timely object to various forms of prosecutorial misconduct including the prosecutor's inflammatory and prejudicial opening and summation arguments and the prosecutor's use of false testimony; and (2) actual innocence. (See id.) Further, petitioner alleges cause for his failure to previously exhaust these additional claims in state court on the basis of his "being unschooled in legal intricacies" and his "complete reliance on his assigned court's counsel." (Id.)


Although his original petition contains only exhausted claims, petitioner moves to stay his petition in order to return to state court and exhaust the additional, unexhausted claims. (See Pet'r Stay Mem.) Mindful that a pro se litigant's filings must be construed "liberally" and "interpret[ed] [so as] to raise the strongest arguments that they suggest," Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation omitted), this court construes petitioner's July 17, 2010 and subsequent submission as a motion to amend his petition to add the previously unexhausted claims. Because such amendment would then result in a so-called "mixed petition" of both exhausted and unexhausted claims, the court further construes the filings as a motion to stay this proceeding on that mixed petition until petitioner completes his exhaustion of his additional claims in the New York courts. These separate motions are discussed in turn.

I.Motion to Amend

A.Legal Standard

A motion to amend a habeas petition is governed by Federal Rule of Civil Procedure 15 ("Rule 15"). Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (citing Fed. R. Civ. P. 15(a)); 28 U.S.C. § 2242 (habeas corpus petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions"). Under Rule 15, a party may amend once as of right within certain time frames, or upon consent of the opposing party or leave of the court. See Fed. R. Civ. P. 15(a). Courts must "freely give" leave to amend where justice requires. Fed. R. Civ. P. 15(a)(2). This is especially true in the context of a pro se filing, such as the one here, which the Second Circuit has emphasized "is to be read liberally" and should not be dismissed without being granted "leave to amend at least once when a liberal reading of the [filing] gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Leave to amend may be appropriately denied where amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). Futility of a proposed amendment is established where "the proposed claim could not withstand a motion to dismiss" for failure to state a claim upon which relief may be granted. Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002). Yet district courts "nonetheless retain the discretion" to deny leave to amend when necessary "to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive." See Littlejohn, 271 F.3d at 363 (citing Davis, 371 U.S. at 182).


Here, the relevant timeframes having passed, and absent the consent of respondent, petitioner may only amend the petition with leave of the court. See Fed. R. Civ. P. 15. In considering the propriety of an amendment, the court notes first, that the record here is devoid of evidence of undue delay, bad faith, or dilatory motive on the part of petitioner. See Littlejohn, 271 F.3d at 363. Indeed, petitioner filed his first motion to stay the petition in July 2010, well before the one-year statute of limitations period for timely filing a habeas claim expired in November 2010. The dispositive issue on whether leave to amend should be granted is thus whether amendment would be futile. The court has considered petitioner's proposed additional claims of ineffective assistance of counsel and his free-standing claim of actual innocence in turn, and for the reasons that follow, the court finds that amendment would be futile.

1.Procedural Default of Petitioner's On-the-Record Ineffective Assistance of Trial Counsel Claims

Petitioner's proposed ineffective assistance of trial counsel claim contains several claims which are now procedurally barred because petitioner failed to raise the claims on direct appeal in ...

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