The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Petitioner pro se, Darwin Roque, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) By letter filed April 6, 2012, petitioner seeks a stay in order to file a motion pursuant to New York Criminal Procedure Law § 440.10 ("440") regarding allegedly unexhausted claims. (Doc. No. 4.) Petitioner also seeks appointment of counsel and to proceed in forma pauperis. (Doc. Nos. 2-3.) For the reasons that follow, petitioner's request for stay and appointment of counsel are DENIED and his request to proceed in forma pauperis is GRANTED.
Petitioner was convicted in the Queens County Supreme Court of second degree murder and criminal possession of a weapon in the fourth degree on November 15, 2006. (Doc. No. 1 at 1.) He was sentenced on February 7, 2007. (Id.) He appealed his conviction to the Appellate Division, Second Department, which affirmed on June 22, 2010. (Id. at 19; People v. Roque, 902 N.Y.S.2d 430 (App. Div. 2d Dep't 2010).) The New York Court of Appeals denied leave to appeal on November 4, 2010. (Doc No. 1 at 19; People v. Roque, 939 N.E.2d 816 (N.Y. 2010) (Table).) Petitioner filed for a writ of error coram nobis on January 6, 2012, which remained pending until he, apparently, withdrew it following the filing of this petition. (Doc. No. 1 at 3; Doc. No. 4.) Petitioner filed the present petition on March 30, 2012. (Doc. No. 1.)
Petitioner seeks habeas relief on seven grounds: (1) insufficient evidence to support the verdict; (2) prosecutorial misconduct; (3) that the trial court's jury charge was erroneous; (4) actual innocence; (5) application of an improper standard by the appellate court; (6) that his sentence was excessive; and (7) ineffective assistance of trial counsel.*fn1 (Doc. No. 1.) From the petition, it appears that that all of the grounds were contained in petitioner's initial direct appeal except for petitioner's fourth ground, actual innocence, and his fifth ground, the application of an improper standard by the appellate court.*fn2 Presently before the Court are three motions by petitioner. Primarily addressed here, petitioner asks the Court to stay his petition in order to allow him to file a 440 motion raising: (1) sufficiency of the evidence at trial; (4) actual innocence; (5) that the appellate court applied an incorrect standard; and (7) ineffective assistance of trial counsel.*fn3 (Doc. No. 4.) Petitioner also seeks appointment of counsel for the purposes of his petition before this Court and for leave to proceed in forma pauperis. (Doc. Nos. 2-3.)
The Court may stay a habeas petition to allow for exhaustion of claims in state court if the petitioner can demonstrate that: (1) good cause exists for failing to exhaust the claims previously; (2) the claims are not plainly meritless; and (3) the petitioner did not intentionally engage in dilatory tactics. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Chambers v. Conway, No. 09 Civ. 2175(JGK), 2010 WL 1257305, at *1 (S.D.N.Y. Mar. 29, 2010). Because petitioner fails to show good cause or that his proposed 440 motion has any potential merit, his motion for a stay is DENIED.
Petitioner fails to show any cause whatsoever - - let alone good cause - - for his failure to exhaust his state law claims prior to bringing this habeas petition. Each of the grounds for his proposed 440 motion are based on facts that he has known or should have known long before bringing this petition, since they occurred either during his trial - - sufficiency of the evidence, actual innocence and ineffective assistance of counsel - - or before he filed his leave to appeal to the New York Court of Appeals - - appellate court error. Indeed, it appears most of these issues were already exhausted during petitioner's direct appeal. Even petitioner's actual innocence claim, which he asserts is not part of the trial record, is based on an alleged "confession" that his petition demonstrates was discovered and discussed with the state court during trial, "when the defense asked for a copy during trial, the Court denied the request stating that the statement was privy to the parties involved." (Doc. No. 1 at 22.) Because the basis for these claims has always been evident from the state court record, plaintiff cannot show good cause for his alleged failure to exhaust. See, e.g., Spurgeon v. Lee, No. 11 Civ. 00600(KAM), 2011 WL 1303315, at *2-3 (E.D.N.Y. Mar. 31, 2011) (staying unexhausted claims involving newly discovered evidence, but finding that petitioner failed to demonstrate good cause on other claims where "the facts underlying [those claims] were known to petitioner at the time of his trial"); Chambers, 2010 WL 1257305, at *1 (finding no good cause where claims were based on the "record in the case"). Petitioner has provided this Court with no other basis for a finding of good cause for his failure to exhaust prior to bringing this petition, therefore, a stay is not warranted.
Moreover, even assuming petitioner had demonstrated good cause for his failure to exhaust, it appears unlikely that any of his grounds for a proposed 440 motion are meritorious. That is, none of them are properly raised on a 440 motion. Specifically, his sufficiency of the evidence claim, his actual innocence claim and his ineffective assistance of counsel claim appear to be trial record-based claims and a New York "state court judge . . . must dismiss [a 440 motion] if it is based on a record-based claim that could have been raised on direct appeal." Chambers, 2010 WL 1257305, at *1 (citing N.Y. Crim. Proc. Law § 440.10(2)(c)); Zoccoli v. Ercole, No. 05 Civ. 00351(RRM), 2008 WL 3200194, at *6 (E.D.N.Y. Jul. 26, 2008) (finding that claims not raised on direct appeal, but for which the "factual bases . . . were all apparent on the face of the trial record," are defaulted and may not be raised in a 440 motion).*fn4
Similarly, petitioner's remedy for any error by the appellate division is not a 440 motion, but appeal to the New York Court of Appeals, an option he has already exhausted. People v. Bachert, 509 N.E.2d 318, 320-21 (N.Y. 1987) ("A motion under [440.10] limits the collateral attack to a judgment and to whether the judgment itself was obtained in violation of the defendant's constitutional rights. . . . Appellate courts do not render judgments of conviction; they only affect them." (citations omitted)); N.Y. Crim. Proc. Law § 450.90(1) (providing appeal of any "adverse or partially adverse order of an intermediate appellate court" to the Court of Appeals). In sum, there is no reason to stay these proceedings to wait for what appears to be a "plainly meritless" 440 motion. Rhines, 544 U.S. at 277.
Therefore, petitioner's motion to stay this case is DENIED.
II.Motion for Appointment of Counsel
Petitioner has requested that he be appointed counsel. A habeas corpus petitioner does not have a constitutional right to counsel. Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). In determining whether to appoint counsel, courts first look at "whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). If that requirement is met, courts consider "the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of legal issues," or any other criteria that would lean in favor of appointing counsel. Hodge, 802 F.2d at 61-62. Having considered petitioner's claims and all of the Hodge factors, the Court finds that appointment of counsel is not warranted at this time because it appears the petition can be resolved on the written submissions. See Lawson v. Taylor, No. 10 Civ. 0477(JS), 2011 WL 839509, at *1 (E.D.N.Y. Mar. 2, 2011) (declining to appoint counsel to a habeas corpus petitioner "because the issues . . . do not appear to require extensive fact investigation and it seems Petitioner's case will likely be resolved on written submissions").
Therefore, petitioner's request for the appointment of counsel is DENIED. This decision is without prejudice to petitioner's ability to re-apply for appointed counsel should circumstances warrant at a later date, and the Court, if appropriate, will revisit whether appointed ...