United States District Court, E.D. New York
LOIS BLOOM, Magistrate Judge.
Pro se Petitioner moves for a stay of this habeas corpus proceeding under 28 U.S.C. § 2254 so that he may exhaust certain claims in state court. (Stay Mot., ECF No. 6.) Respondent opposes the motion on the ground that a stay would be futile. (Opp'n, ECF No. 8.) The Honorable Margo K. Brodie referred Petitioner's motion as well as the underlying petition to me pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, Petitioner's motion for a stay is denied.
On August 26, 2010, Petitioner was convicted of second-degree murder in the Supreme Court of the State of New York, Kings County. (Pet., ECF No. 1.) Petitioner appealed his conviction to the Appellate Division of the New York Supreme Court for the Second Judicial Department, and raised three claims: (1) the state trial court violated his right to due process by admitting evidence of an uncharged crime he allegedly committed; (2) trial counsel was ineffective for failing to preserve that due process argument; and (3) the sentencing court relied on a misapprehension of the law when it ran Petitioner's sentence consecutively to a prior undischarged sentence imposed by a Pennsylvania court. (Resp., ECF No. 5, Ex. E (Appellate Br.).) The Appellate Division affirmed the conviction on June 20, 2012, but vacated Petitioner's sentence. (Pet.; Resp., Ex. G.) Regarding the merits of the appeal, the Appellate Division determined that "[t]he defendant's [due process argument was] unpreserved for appellate review, " and, in any event, without merit, but that the trial court "incorrectly believed that it was required, as a matter of law, to direct that the defendant's sentence run consecutively to a certain undischarged sentence when in fact, under the circumstances, the [trial] court had discretion to direct that the defendant's sentence run either concurrently with or consecutively to that undischarged sentence." (Resp., Ex. G.) Petitioner sought leave from the Court of Appeals to appeal only the dismissal of his due process claim. (Id., Ex. H.) The Court of Appeals denied Petitioner leave on August 21, 2012. (Id., Ex. J.)
On July 31, 2013, Petitioner filed the instant pro se petition seeking a writ of habeas corpus based on the same three grounds he raised on direct appeal. (Pet. at 6-8, 18.) Petitioner also stated that "he would  like to submit a Writ of Error Coram Nobis with the  Second Department  [f]or or ineffectiveness of Appellate Counsel for neglecting to argue more relevant and prese[r]ved issues and for not extensively including in its appeal brief that fact of trial counsel's ineffectiveness." (Id. at 19.) Petitioner notes that he did not previously seek post-conviction relief because he "do[es]n't know the law and [he] was relying on [his] Direct Appeal for positive results...." (Id. at 7.)
Respondent's counsel's affidavit in opposition to the petition argues that Petitioner's due process claim is procedurally barred by the independent and adequate state ground doctrine; Petitioner raises claims that are unexhausted, moot, and/or abandoned; and a stay of the petition to permit exhaustion of Petitioner's ineffective assistance of counsel claims would be futile. (Resp. at 1-2.) As to Petitioner's stay request in his habeas petition, Respondent specifically argues that: (1) a motion to vacate his conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("NYCPL") raising Petitioner's ineffective assistance of trial counsel claim would be procedurally barred because the Appellate Division already decided that claim; and (2) Petitioner fails to show good cause for his delay in filing a Section 440.10 motion based on appellate counsel's performance. (Id. at 33-34.) Petitioner never filed a post-conviction motion raising the claims mentioned in his petition.
Petitioner thereafter filed the instant motion to stay his petition and, on April 24, 2014, he filed a Section 440.10 motion in the New York Supreme Court of Kings County seeking to vacate his conviction based on six new claims:
1. Ineffective assistance of counsel for trial counsel's failure to: (a) investigate certain physical evidence recovered during the autopsy; (b) object to the admission into evidence of the murder weapon on the ground of inadequate foundation; (c) consult or call expert witnesses or any defense witnesses; (d) request certain discovery pertaining to witnesses from the medical examiner's office; and (e) object to certain remarks made by the prosecutor in summation.
2. A Brady claim alleging that the prosecutor failed to disclose alleged exculpatory evidence recovered during the autopsy.
3. Knowing use of false testimony based primarily on alleged inconsistencies between two eyewitnesses' testimonies and the testimony of other prosecution witnesses.
4. Prosecutorial misconduct during the opening statement and summation.
5. Fraud upon the court based on alleged inconsistencies between the testimony of the prosecution's DNA expert and the expert's laboratory report.
6. A freestanding claim of actual innocence.
(Opp'n at 1-2, Attach. 1.) Petitioner also requested an order for DNA testing of certain evidence recovered during the autopsy, pursuant to Section 440.30 of the NYCPL. (Id. at 2.) On September 9, 2014, the Supreme Court denied the motion to vacate. (Id., Attach. 1.) Petitioner appealed the denial of his Section 440.30 motion, and sought leave to appeal the denial of his motion to vacate. (Id.) Respondent argues that a stay pending Petitioner's pursuit of these additional claims ...