United States District Court, S.D. New York
OPINION AND ORDER
C. McCARTHY, United States Magistrate Judge
Tyrone Haywood ("Petitioner") brings a pro
se habeas corpus petition pursuant to 28 U.S.C. §
2254, challenging his state court conviction following a jury
trial in New York State County Court, Westchester County.
(Docket No. 2). By letter dated February 10, 2017, Petitioner
requests that his petition be stayed and held in abeyance so
that he can litigate an additional claim pursuant to New York
Criminal Procedure Law § 440.10 to address an alleged
Brady violation (the "§ 440.10
Motion"). (Docket No. 43). Specifically, Petitioner
contends that newly discovered evidence, the purported
psychiatric records of L.M., a witness for the prosecution,
was improperly suppressed at trial. (Docket Nos. 42, 43).
Respondent Thomas R. Griffin ("Respondent") opposes
the request. (Docket No. 45). For the reasons set forth
below, Petitioner's application is granted.
STANDARD FOR STAY
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court clarified the district courts' ability to issue a
stay and abeyance of habeas corpus petitions in limited
circumstances. The purpose of the stay and abeyance is
"to allow the petitioner to present his unexhausted
claims to the state court in the first instance, and then to
return to the federal court for review of his perfected
petition." Rhines, 544 U.S. at 271-72. Thus, as
an initial matter, a petitioner must have a mixed petition,
one that contains both exhausted and unexhausted claims.
See Rhines, 544 U.S. at 277-78 (discussing staying
of a mixed petition to permit litigation of unexhausted state
claims); Ortiz v. Heath, No. 10 Civ. 1492, 2011 WL
1331509, at *14 (E.D.N.Y. Apr. 6, 2011)("stay and
abeyance procedure applies only to petitions which contain
unexhausted claims"). The Court may stay a habeas
petition to allow for exhaustion of claims in state court if
the petitioner can demonstrate that: (i) good cause exists
for failing to exhaust the claims previously, (ii) the claims
are potentially meritorious, and (iii) the petitioner did not
intentionally engage in dilatory litigation tactics. See
Rhines, 544 U.S. at 277-78 (2005); Vasquez v.
Parrott, 397 F.Supp.2d 452, 464 (S.D.N.Y. 2005).
contends that he has filed the § 440.10
Motion to vacate the state criminal conviction
that is the subject of his original petition before this
Court. (Docket No. 43), Petitioner claims to argue that
Respondent's suppression of newly discovered evidence,
L.M.'s purported psychiatric records, at his trial
constituted a Brady violation. (Docket Nos. 42, 43).
This new claim is not exhausted and, thus, the Court could
not grant relief on it even if it were raised in the
petition. See 28 U.S.C. § 2254(b)(1)(A). As
explained below, the Court concludes that: (i) Petitioner has
shown good cause for failing to exhaust this Brady
claim, and (ii) the Brady claim is not plainly
meritless. Having so concluded, the Court grants
Petitioner's request for a stay and abeyance.
Petitioner Has Shown Good Cause for Failure to Exhaust his
has shown good cause for not having exhausted his
Brady claim because, as his submissions state, this
claim is based on newly uncovered evidence. (Docket Nos, 42,
43). Petitioner "could not have earlier exhausted a
claim based on evidence of which he was unaware [and] [t]his
fact satisfies the good cause requirement for a stay under
Rhines." Jimenez v. Graham, No. 11 Civ. 6468
(JPO), 2011 WL 6287999, at *4 (S.D.N.Y. Dec. 14, 2011);
see also Castellanos v. Kirkpatrick, No. 10 Civ.
5075 (MKB), 2013 WL 3777126, at *2 (E.D.N.Y. July 16, 2013)
("The nature of a Brady claim, predicated on
failure to disclose material information, makes it
particularly suitable for a finding of good cause.").
Accordingly, based on the information presented, the Court
concludes that Petitioner has shown good cause for failing to
exhaust his Brady claim.
Petitioner's Brady Claim is not Plainly
v. Maryland, 373 U.S. 83 (1963), established that
prosecutorial suppression of evidence favorable to a
defendant violates due process if the evidence is material to
guilt or punishment, regardless of the prosecution's good
or bad faith. Id. at 87. For suppression to
constitute a Brady violation, three requirements
must be met: "The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must
have ensued." Strickler v, Greene, 527 U,S.
263, 281-82 (1999). Prejudice exists "if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S.
667, 682 (1985).
Supreme Court has also clarified that the duty to disclose
such evidence applies even without a request by the accused.
United States v. Agurs, 427 U.S. 97, 107 (1976).
Moreover, Brady does not require that the prosecutor
personally know of the evidence not provided to the accused;
however, prosecutors have a duty to "learn of any
favorable evidence known to the others acting on the
government's behalf in the case, including the
police." Kyles v. Whitley, 514 U.S. 419, 437
(1995). While the government generally need not turn over
evidence of which the defense knew or should have known,
United States v. Torres, 719 F.2d 549 (2d Cir.
1983), suppression of a prosecution witness's criminal
history and further evidence of untruthfulness may qualify as
a Brady violation. See Crivens v. Roth, 172
F.3d 991, 998 (7th Cir. 1999); United States v.
Perdomo, 929 F.2d 967, 973 (3d Cir. 1991).
has apparently asserted in a pending state court proceeding
that the prosecution's failure to provide L.M.'s
psychiatric records constitutes a Brady violation.
(Docket Nos. 42, 43). The evidence that Petitioner claims was
suppressed by the prosecution may satisfy the three
requirements of a Brady violation. Upon full
briefing, the court may find that the evidence is favorable
to Petitioner because it is impeaching of a witnesses against
him, and that the prosecution's failure to obtain and
present L.M.'s psychiatric records constitutes
suppression. Petitioner will have a challenge showing that
prejudice resulted from such suppression or, in other words,
demonstrating "a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley,
473 U.S. at 682. However, finding that this claim is not
plainly meritless, Petitioner may be able to argue a
Brady violation in state court demonstrating that
the evidence withheld was favorable to Petitioner, suppressed
by the state, and resulted in prejudice.
because: (i) Petitioner has shown good cause for having
failed to exhaust his Brady claim in state court;
(ii) the claim is not plainly meritless; and (iii) the Court
finds that Petitioner has not engaged in dilatory litigation
tactics, a stay and abeyance of these proceedings is
appropriate under Rhines v. Weber.