The opinion of the court was delivered by: Michael A. Telesca United States District Judge
On October 6, 2009, proceeding pro se, Willie Singleton ("Singleton" or "Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("the First Petition") on the basis of alleged constitutional infirmities in his November 27, 2007, conviction for failing to register as a sex offender pursuant to New York's Sex Offender Registration Act ("the SORA"). See Singleton v. Lee, 09-CV-6654(MAT) (W.D.N.Y.). This Court denied Singleton's petition with prejudice on June 13, 2011. Judgment dismissing the petition was entered on June 23, 2011.
Meanwhile, on June 7, 2011, Singleton filed another Section 2254 petition for habeas corpus in this Court ("the Second Petition"), challenging the November 27, 2007 conviction. The case was opened on June 14, 2011, as Singleton v. Lee, 11-CV-6293(CJS). On June 22, 2011, the Court (Larimer, D.J.), transferred the Second Petition to the United States Court of Appeals for the Second Circuit on the basis that it was a second or successive petition pursuant to 28 U.S.C. § 2244(b)(1), and permission from the Second Circuit to file such a petition was required pursuant to 28 U.S.C. § 2244(b)(3).
On August 8, 2011, the Second Circuit issued a Decision and Order with regard to both of Singleton's cases in the Western District of New York. The Second Circuit held that because Singleton's Second Petition was filed before judgment was entered with regard to the dismissal of the First Petition, the Second Petition was not successive and it was improperly transferred to this Court. Accordingly, the Second Circuit remanded the matter to the District Court with instructions to (1) vacate the judgment denying the first § 2254 petition; (2) treat the Second Petition as a motion to amend the First Petition pursuant to Fed. R. Civ. P. 15; and (3) determine whether the new claims relate back to the original, timely-raised claims, if the one-year statute of limitations has passed. The mandate issued on August 29, 2011.
The Second Circuit's mandate was filed in the Western District in Case Number 11-CV-6293(CJS) on November 7, 2011. However, it was not until March 2, 2012, that the mandate was filed in Case Number 09-CV-6654, thereby alerting this Court to the remand.
For the reasons discussed below, the Court finds that the claims asserted in the Second Petition are untimely and do not relate back to the First Petition for purposes of Fed. R. Civ. P. 15. In addition, the proposed new claims are unexhausted, but must be deemed exhausted because Petitioner no longer has available remedies in state court. The procedural rules that foreclose his return to state court also render the claims procedurally defaulted, and there is no basis to excuse the default. Amending the petition to add untimely and procedurally barred claims would be futile, and the motion to amend is therefore denied. The Court adheres to its original order dismissing the claims asserted in the First Petition, as set forth below.
II. Factual Background and Procedural History
In 1996, while Petitioner was serving a prison term for a 1984 conviction for Rape in the First Degree, SORA was enacted. When he was released to parole in 1997, he was designated a level three sex offender and required to verify his address with local law enforcement every ninety days. Petitioner registered his address with the Geneva Police Department on July 3, 2006, and was due to register again on October 1, 2006. Because he failed to do so, he was arrested on October 8, 2006.
An Ontario County grand jury charged Petitioner with one count of Failure to Register as a Offender pursuant to New York Corrections Law ("Corr. Law") §§ 168-(f)(3) and 168-t. In July of 2005, Petitioner had previously been convicted of Failure to Register as a Sex Offender. Thus, pursuant to New York Corrections Law ("Corr. Law") § 168-(t), his subsequent failure to register was punishable by a class "D" felony.
On November 26, 2007, Singleton's jury trial commenced. Carole Perry ("Perry") was the secretary to the Geneva Chief of Police and was primarily responsible for overseeing the registry for sex offenders. T.111. Perry testified that Petitioner, a level three sex offender, was required to register his address with the police department every ninety days by coming to the police department and signing the registry. Petitioner had been registering his address with the police department for over eight years, since 1999.
T. 112. He had last registered his address on July 3, 2006, by coming to the police department and signing the registry verifying his address. Id. Petitioner next signed the registry on October 8, 2006, the day he was arrested. T.113-14. Perry was not aware of any attempt by Petitioner to sign the registry prior to his arrest.
Petitioner testified in his own behalf, admitting his previous convictions of first-degree rape, convicted of stalking in the fourth degree, public lewdness, forcible touching, and assault; his sex offender level; and that he was required to register his address with the police department every ninety days. T.157, 160-61.
Petitioner testified that when he had stated at the preliminary hearing that he had gone to the police department on September 25th or 26th, he was mistaken and later realized that he had actually gone on either September 21st or 22nd. T.154. Petitioner further testified that when he did go to the police department, he asked to sign the registry early and was told by Perry to come back on the first of the month. T.155. Because October 1st was a Sunday, he could not register. Petitioner explained that he did not return to register after that date because he was working two jobs and did not have time. T.155.
On rebuttal, Perry testified that she was working on September 21st and September 22nd of 2006, and did not see Petitioner at the police department on either of those dates. T.163. Perry stated that had Petitioner come in, she would have allowed him to register and would not have told him to return at a later time. Id.
The jury returned a verdict on November 27, 2007, convicting Singleton as charged in the indictment. He was sentenced the same day to an indeterminate term of two and one-third to seven years imprisonment.
Petitioner filed five pro se motions to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 asserting that his the predicate "failure to register as a sex offender" conviction, which was used to raise his current conviction to a felony, should have been vacated (first motion); SORA offender was declared unconstitutional with regard to sex offenders whose crimes were committed prior to the law's date of enactment (second motion); he was denied his right to counsel at the arraignment and he was improperly instructed on his right to request an adjournment in order to obtain counsel (third motion); he was erroneously forced to testify before the grand jury while wearing handcuffs (fourth motion); and, upon his release from prison, he was not afforded due process of law at the judicial hearing in which he was designated a level three sex offender (fifth motion). These motions were unsuccessful.
Represented by new counsel, Singleton instituted a direct appeal of his conviction, arguing that (1) the verdict was against the weight of the evidence; (2) the Sandoval ruling was an abuse of discretion; and (3) the sentence was harsh and excessive. Petitioner filed a pro se supplemental appellate brief arguing that (1) the prosecution could not establish when the ninety-day registry cycle began without the testimony of Liz Carty, whom Petitioner claimed witnessed his signature on the registry on July 3, 2006; (2) he was not properly arraigned; and (3) he was not accorded a full judicial hearing to determine his level as a sex offender when he was released following his rape conviction.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. People v. Singleton, 66 A.D.3d 1444 (4th Dept. 2009). Leave to appeal to the New York Court of Appeals ...