United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY CHIEF JUDGE
se petitioner Derrick Thompson
(“Petitioner”) seeks to amend his habeas corpus
petition filed pursuant to 28 U.S.C. § 2254 to include
claims made in: (1) his petition for a writ of error
coram nobis, (2) his third and fourth § 440.10
motions to vacate his conviction, and (3) his motion for
reconsideration of the 2012 decision of the New York State
Supreme Court Appellate Division, Second Department
(“Appellate Division”), affirming his conviction.
(See Pet'r's Letter Requesting Leave to
Amend and Seeking Stay (“Pet'r's Ltr.
1”), Dkt. Entry No. 36 at 1; Pet'r's Letter
Requesting Stay (“Pet'r's Ltr. 2”), Dkt.
Entry No. 43 at 1; Pet'r's Letter Seeking Permission
to Add to his Federal Petition (“Pet'r's Ltr.
3”), Dkt. Entry No. 45). Petitioner also moves to stay
these proceedings in order to file a habeas corpus petition
in state court on the grounds that he was denied his right to
a speedy trial. (Pet'r's Ltr. 2 at 1.) Petitioner
further requests that the Court order the Clerk of the Court,
Queens County, to provide him with discovery in support of
his speedy trial claim. (See Pet.'r's Letter
Requesting the Court Intervene (“Discovery
Request”), Dkt. Entry No. 44.) Respondent objects in
part. (Resp.'s Opp'n to Pet'r's Ltr.
(“Resp.'s Opp'n”), Dkt. Entry. No. 38 at
1.) For the reasons set forth below, Petitioner's motion
to amend is granted in part and denied in part,
Petitioner's motion to stay is denied, and
Petitioner's request for discovery is denied.
10, 2010, Petitioner was convicted of burglary and grand
larceny in New York State Supreme Court, Queens County.
(See Petition (“Pet.”), Dkt. Entry No. 1
at 1.) On May 19, 2010, Petitioner was sentenced as a
mandatory persistent violent felony offender to concurrent
indeterminate prison sentences of twenty years to life on the
burglary conviction and two to four years on the grand
larceny conviction. (Resp.'s Opp'n at 1.) Petitioner
unsuccessfully challenged his conviction and sentence through
direct and collateral appeals. (Id. at 1-2; See
People v. Thompson, 99 A.D.3d 819 (2d Dept. 2012);
People v. Thompson, 20 N.Y.3d 989 (2012); People
v. Thompson, 125 A.D.3d 1013 (2d Dept. 2015); People
v. Thompson, 25 N.Y.3d 1208 (2015).) On March 3, 2015,
this Court denied Petitioner's first motion to stay these
proceedings, holding that he failed to establish good cause.
(Order Dated Mar. 3, 2015, Dkt. Entry No. 23.) Presently,
Petitioner seeks to amend his petition to include claims
pursued in collateral proceedings in state court, to stay
these proceedings to pursue an additional claim in state
court, and to obtain discovery. (Pet'r's Ltr. 1 at 1;
Pet'r's Ltr. 2 at 1; Discovery Request at 1.)
Petitioner's Motion to Amend
has moved to amend his petition to include the claims brought
in his petition for a writ of error coram nobis,
motion for reconsideration, and third and fourth §
440.10 motions to vacate his conviction. (Pet'r's
Ltr. 1 at 1; Pet'r's Ltr. 2 at 1.)
coram nobis petition was filed before the one-year
statute of limitations on habeas petitions expired, tolling
the statute of limitations. See 28 U.S.C. §
2244(d)(2). Petitioner moved to amend his habeas petition to
include these claims after the Appellate Division denied his
motion (See People v. Thompson, 125 A.D.3d 1013 (2d
Dept. 2015)), but while his motion for leave to appeal was
still pending before the New York State Court of Appeals.
(Pet'r's Motion to Amend, Dkt. Entry No. 24 at 1.)
The government opposed the motion for leave to amend on the
grounds that the claims were not yet exhausted. (Resp.'s
Opp'n to Motion to Amend, Dkt. Entry No. 25.) Shortly
thereafter, the Court of Appeals denied leave to appeal.
(Resp.'s Letter, Dkt. Entry No. 28; See People v.
Thompson, 25 N.Y.3d 1208 (2015).) While Petitioner never
filed a new motion to amend, his original motion was not
resolved. Respondent does not oppose this section of
Petitioner's motion to amend. (Resp.'s Opp'n at
Petitioner's motion to amend was filed within the
one-year statute of limitations, and the claims in his
coram nobis petition were fully exhausted within
this period, the Court will consider all claims raised and
exhausted in the state coram nobis proceedings.
the rest of Petitioner's motion to amend falls outside
the one-year statute of limitations, and amendment is
permitted only if those claims relate back to the original
petition. Fama v. Comm'r of Corr. Servs., 235
F.3d 804 (2d Cir. 2000). The original petition and the new
claims must “have a common core of operative
facts.” Mayle v. Felix, 545 U.S. 644, 664
claims Petitioner seeks to bring as part of an amended
petition are that: (1) trial counsel failed to investigate
the government's claim that it had probable cause to test
Petitioner's DNA; (2) trial counsel failed to object to
the government's “untimely” motion for DNA
testing; (3) the Appellate Division improperly affirmed
Petitioner's conviction despite a violation of his
Confrontation Clause rights; (4) Petitioner's conviction
was based on unreliable DNA samples; (5) the trial court
failed to hold a Frye hearing regarding the DNA
testing procedures used; and (6) the government violated
Petitioner's right to a speedy trial when it waited until
nine months after his arraignment to request a DNA test.
(Pet'r's § 440.10 Br. (“§ 440.10
Br.”), Dkt. Entry No. 40 at 5-14.)
the exception of the Confrontation Clause argument, none of
these claims have a common core of operative facts with the
original petition. The ineffective assistance claims have an
entirely different basis from those brought in the original
petition (See Pet. Exhibit 1, Dkt. Entry No. 1-3 at
143-46), and the other new claims are completely unrelated.
(See generally, Pet.)
brought a similar Confrontation Clause claim in the original
petition, arguing that his right to confrontation was
violated when the government introduced DNA evidence without
making the original technicians available for
cross-examination. (Id. at 133-137.) However, it
appears that the new claim is based on People v.
John, 27 N.Y.3d 294 (2016), a recent New York Court of
Appeals case. (§ 440.10 Br. at 9.) Putting aside the
issue of whether a new state court case decided long after
Petitioner's trial and appeal could be applied
retroactively, this claim has a different basis from that in
the original petition. It differs “in time and
type” from the original claim and, thus, does not
relate back for the purpose of amendment. See Mayle,
545 U.S. at 567.