United States District Court, S.D. New York
OPINION AND ORDER
LISA MARGARET SMITH, Magistrate Judge
Petitioner Kenneth West, proceeding pro se, commenced the instant habeas proceeding, pursuant to 28 U.S.C. § 2254, on October 18, 2012. Docket Entry (hereinafter "D.E.") 2, Petition at 6-11. Through his habeas petition (hereinafter "Petition"), petitioner challenges his March 4, 2009, state court conviction. Now before the Court is petitioner's December 16, 2013, motion, which is labeled as one seeking reconsideration of a prior order. D.E. 26. As explained below, the submission is more appropriately characterized as a motion for a stay. For the following reasons, the motion is denied.
At the conclusion of a trial in New York State County Court, Westchester County (Zambelli, J.), a jury found petitioner guilty of three counts of murder in the second degree, stemming from the death of Josephine O'Keefe. Id. at 1; D.E. 15, Respondent's Affid. at 10. The jury acquitted petitioner of a fourth count of murder, which concerned a separate, unrelated victim. Id . On April 21, 2009, the County Court Judge sentenced petitioner to three concurrent terms of twenty-five years to life in prison. Id. at 2; D.E. 2, Petition at 1.
Petitioner appealed from the judgment of conviction, arguing that (1) the County Court Judge improperly permitted opinion testimony that the murder of O'Keefe was "sex related"; (2) the County Court Judge erred when she did not sever the counts as to the two victims; (3) the prosecutor made certain remarks during summation that deprived petitioner of a fair trial; (4) the County Court Judge erroneously excluded certain prior statements of an unavailable witness, which would have implicated a third party in the murder of O'Keefe; and (5) the verdict was against the weight of the evidence. D.E. 20, Appellant's Brief at 1. On July 12, 2011, the Second Department of the New York State Supreme Court, Appellate Division, affirmed the judgment of conviction. People v. West , 86 A.D.3d 583 (2d Dept. 2011). The Court held the petitioner's first, second, and fifth contentions lacked merit. Id . It stated that his third and fourth arguments were unpreserved for review, and, in any event, lacked merit. Id . Petitioner asked the New York State Court of Appeals for leave to appeal, raising only the first and second arguments contained in his appellate brief. Memo. in Opp., Exh. 5, Gandolfo Letter. On November 28, 2011, the New York State Court of Appeals denied petitioner's motion for leave to appeal. People v. West, 17 N.Y.3d 956 (2011).
On October 18, 2012, petitioner commenced the instant habeas corpus proceeding, raising four claims: (1) there was not legally sufficient evidence in the record to support the conviction; (2) petitioner's trial counsel failed to provide him with effective legal assistance because he failed to raise certain objections and admit certain evidence; (3) the County Court Judge improperly excluded evidence that inculpated a third party in the murder of O'Keefe; and (4) petitioner was improperly denied access to the trial transcripts. D.E. 2, Petition at 6-11.
On November 30, 2012, Petitioner moved for a stay of this habeas proceeding so that he could obtain a copy of the trial transcripts, and file in state court either a motion pursuant to N.Y. Crim. Proc. L. § 440 or an application for a writ of error coram nobis. Petitioner, through such state collateral attacks, sought to raise the following arguments: (1) ineffective assistance of appellate counsel; (2) any other claims not contained in his Petition that he discovered after review of the trial transcripts; and (3) claims one (legally insufficient evidence to support the verdict) and two (ineffective assistance of trial counsel) of the Petition. D.E. 13, Petitioner's Declaration.
By Order dated June 4, 2013, the Court denied the motion for a stay, holding that the ineffective assistance of appellate counsel claim had not been raised in the Petition, and, consequently, it was not available as grounds for a stay. D.E. 18, Order at 5-6. As to petitioner's second basis for the requested stay, the Court explained that unstated potential claims not already in the Petition were inappropriate bases for a stay. Id . Finally, the Court concluded that a stay was not warranted for purposes of exhausting claims one and two in the Petition because both claims were unexhausted, as well as procedurally defaulted, and Petitioner had not established cause for the failure to exhaust. Id.
On December 20, 2013, petitioner filed the instant motion, which he labeled as one seeking reconsideration of the June 4, 2013, Order. D.E. 26, Motion for Reconsideration. The State opposes the motion. D.E. 27, Affid. in Opp.
In reality, petitioner's motion is a new motion for a stay, and, recognizing its duty to construe pro se submissions liberally, see McPherson v. Coombe , 174 F.3d 276, 280 (2d Cir. 1999); Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996) (application submitted by pro se petitioner should be "read liberally and should be interpreted to raise the strongest arguments that [it] suggests" (internal quotations and citation omitted)); Haines v. Kemer , 404 U.S. 519, 520-21 (1972) (per curiam) (pro se allegations contained in habeas corpus petitions should be liberally construed), the Court will construe the motion as such.
In substance, petitioner asks for a stay so that he may raise the following claims in state court, either by motion pursuant to N.Y. Crim. Proc. Law § 440.10, or through an application for a writ of error coram nobis: (1) petitioner's trial counsel failed to render effective legal assistance because counsel did not successfully admit at trial evidence that a third party was the culprit of the murder; (2) petitioner's appellate counsel did not provide him with effective legal assistance because counsel failed to argue that petitioner's trial counsel was ineffective when trial counsel failed to admit at trial evidence that a third party was responsible for the charged crimes; and (3) petitioner's appellate counsel failed to render effective legal assistance because appellate counsel did not argue on appeal that petitioner's trial counsel was ineffective for failing to challenge the legal sufficiency of the evidence supporting the conviction. D.E. 26, Petitioner's Mot. for Reconsideration at 1-6. By letter dated February 5, 2014, petitioner adds that he would like the instant proceeding stayed so that he may raise a freestanding "actual innocence" claim in state court, citing a recent decision by the Second Department of the New York State Supreme Court, Appellate Division, People v. Hamilton , 115 A.D.3d 12 (2d Dept. 2014), which, according to petitioner, recognized such a claim under the New York State Constitution. D.E. 28, Letter.
In opposition, respondent generally argues that the motion does not meet the standard necessary for reconsideration of a prior ...