United States District Court, W.D. New York
ERIC D. CARR, Petitioner,
HAROLD GRAHAM, Respondent
Eric D. Carr, Plaintiff, Pro se, Auburn, NY.
For Harold D. Graham, Defendant: Donna A. Milling, LEAD ATTORNEY, Erie County District Attorney's Office, Buffalo, NY; Donna Milling (e-service), LEAD ATTORNEY, Erie County District Attorney's Office, Buffalo, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Pro se petitioner Eric D. Carr (" Petitioner" ) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also has filed a motion to stay the petition (Docket No. 9). For the reasons set forth below, the motion for a stay is denied with prejudice.
Petitioner was convicted after a jury trial in New York State Supreme Court, Erie County, of attempted murder in the second degree (N.Y. Penal Law (" P.L." ) § § 110, 125.25(1), 20.00), criminal possession of a weapon in the second degree (P.L. § 265.03(2)), criminal possession of a weapon in the third degree (P.L.
§ 265.02(4), 20.00), and criminal possession of a weapon in the fourth degree (P.L. § 265.01(2), 20.00). The charges arose from an incident in which Petitioner and his father and co-defendant, Clarence Carr (" Mr. Carr." ) attacked on an unarmed victim, which resulted in the victim being struck with a machete and shot several times with a handgun.
Petitioner was sentenced to a determinate term of 25 years plus 5 years of post-release supervision. On direct appeal, his conviction was unanimously affirmed by the Appellate Division, Fourth Department, of New York State Supreme Court. People v. Carr, 59 A.D.3d 945, 872 N.Y.S.2d 626 (4th Dep't 2000). The New York Court of Appeals granted leave to appeal, and ultimately affirmed the conviction. People v. Carr, 14 N.Y.3d 808, 926 N.E.2d 253, 899 N.Y.S.2d 746 (2010).
By motion papers dated January 27, 2011, Petitioner moved to vacate his conviction pursuant to New York Criminal Procedure Law (" C.P.L." ) § 440.10. The trial court (Buscaglia, J.) denied the motion on August 31, 2011. Petitioner moved for reargument, which was denied on February 7, 2012. The Fourth Department denied leave to appeal on April 2, 2012. Petitioner filed a second C.P.L. § 440.10 motion on February 22, 2012. Justice Buscaglia denied the motion on August 17, 2012, and the Fourth Department denied leave to appeal on October 17, 2012. Petitioner then filed a petition for a writ of error coram nobis on June 4, 2012, which the Fourth Department denied on September 28, 2012. People v. Carr, 98 A.D.3d 1324, 953 N.Y.S.2d 180 (4th Dep't 2012). The Court of Appeals denied leave to appeal on July 6, 2013. People v. Carr, 21 N.Y.3d 1014, 994 N.E.2d 392, 971 N.Y.S.2d 496 (2013).
This timely habeas petition followed in which Petitioner asserts the following grounds for relief: (1) he was denied his constitutional right to testify by his trial counsel, who was operating under a conflict of interest because he also was representing Petitioner's father, whom counsel allowed to testify; (2) the prosecution's evidence on the element of intent was legally insufficient to satisfy the requirements of due process; (3) the prosecution erroneously failed to disclose the victim's criminal record and pending criminal charges; and (4) the trial court abused its discretion by denying his request for a missing witness charge.
Respondent filed his answer and opposition memorandum of law on November 19, 2013, arguing that the first claim, based on trial counsel's alleged failure to allow Petitioner to testify, is unexhausted but should be deemed exhausted and procedurally defaulted. Respondent also argues that the missing witness charge is unexhausted because it was raised on direct appeal solely based on state law, and thus Petitioner failed to fairly present the claim in federal constitutional terms. Respondent notes that this claim, too, must be deemed exhausted and procedurally defaulted because Petitioner no longer has any avenues in state court by which to raise it. Respondent argues, in the alternative, that all of Petitioner's claims lack merit.
On May 20, 2014, Petitioner filed motion to have the petition stayed and held in abeyance so that he could return to state court to exhaust certain claims, presumably those as to which Respondent asserted the defense of non-exhaustion. He also seeks to add several new claims to the petition: (1) " ineffective assistance of trial counsel" based on unspecified errors; (2) " the court denied petitioner his right to a fair trial and hindered his defense by denying him an ...