Tucker v. Heath

Filing 17

MEMORANDUM & ORDER: Following this Court's grant of a stay to allow Tucker to pursue unexhausted claims in state court, Tucker now requests 16 permission to amend his petition and reopen this habeas proceeding. The Court grants Tuck er 30 days from the date of this Order to file an amended petition for a writ of habeas corpus that includes all claims that he has properly exhausted. The Court notes further that should Tucker attempt to seek review of any unexhausted claims in his amended petition, it is unlikely that the Court will grant him an additional stay given that the Court has already afforded him an opportunity to pursue unexhausted claims. Within 30 days of this Order, Tucker shall also file a memorandum of l aw in support of the claims set forth in the amended petition. Within 30 days of receipt of Tucker's amended petition and memorandum of law, respondent shall show cause before this Court by the filing of a return to the petition, why a writ of habeas corpus should not be issued and serve a copy of the return on Tucker. Tucker, within 30 days of receipt of a copy of the return, shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 11/6/2012. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYN OFFICE

MARC TUCKER,

Petitioner,

NOV 062012

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NOT FOR PUBLICATION
MEMORANDUM & ORDER
10-CV-02126 (CBA)

- against-

P. HEATH, Superintendent,
Respondent.

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AMON, Chief United States District Judge.
Petitioner Marc Tucker, proceeding pro se, petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his New York state convictions of assault
and criminal possession of a weapon. Following this Court's grant of a stay to allow Tucker to
pursue unexhausted claims in state court, Tucker now requests permission to amend his petition
and reopen this habeas proceeding. (DE #16.) For the reasons stated below, the Court grants
Tucker's request to amend his petition provided it reflects only those claims actually exhausted
in state court.
DISCUSSION
In his initial habeas petition, filed May 5, 2010, Tucker challenged his conviction
claiming (1) that evidence was admitted in violation of the Confrontation Clause, and (2) that he
was denied access to the full record of his criminal proceedings on appeal in violation of due
process. Respondent, in his opposition papers filed on October 29,2012, pointed out that
although Tucker's petition was timely and his Confrontation Clause claim exhausted, Tucker had
not exhausted his due process claim. (DE #9.) In his reply, Tucker clarified that his claim that
he was denied full access to his criminal trial record was in fact one aspect of a broader

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complaint that his appellate counsel did not provide effective assistance. Appellate counsel,
Tucker explained, was ineffective because she failed to: (1) obtain necessary documents on his
behalf, (2) appeal the trial court's denial of trial counsel's request for a mistrial, and (3) appeal
the trial court's decisions made at a suppression hearing. Recognizing that he had not exhausted
these claims, Tucker requested a stay to return to state court to do so. (DE #11.) On September
19,2011, this Court granted Tucker's request for a stay and directed him to return to this Court
once he exhausted his claims to move to file an amended habeas petition within thirty days of a
final state court decision. (DE #12.)
On December 5,2011, Tucker filed a writ of error coram nobis in the Appellate Division,
Second Department, claiming that his appellate counsel provided ineffective assistance. In his
submission, he asserted that his appellate counsel failed to appeal the trial court's refusal to grant
a mistrial based on the improper admission of the detective's hearsay testimony often witnesses,
an admission that ultimately denied Tucker a full and fair opportunity to present an adequate
defense. He did not, however, argue that his appellate counsel was ineffective in either failing to
obtain trial records on his behalf or failing to appeal the trial court's suppression hearing
decisions. (DE #15.)
On May 15,2012, stating that "appellant has failed to establish that he was denied the
effective assistance of appellate counsel," the Appellate Division denied Tucker's application for
a writ of error coram nobis. People v. Tucker, 943 N.Y.S.2d 897 (2d Dep't 2012). On August
24,2012, the New York Court of Appeals denied his application for leave to appeal. People v.
Tucker, 951 N.Y.S.2d 897 (2012). Tucker's instant request to submit an amended habeas
petition, dated September 21,2012, was subsequently timely filed. See Houston v. Lack, 487
U.S. 266, 275 (1988) (holding pro se prisoner's notice of habeas appeal "was filed at the time

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petitioner delivered it to the prison authorities for forwarding to the court clerk"); Noble v. Kelly,
246 F.3d 93,97-98 (2d Cir. 2001) (extending prison mailbox rule to filing of habeas petitions).
Accordingly, the Court grants Tucker thirty (30) days from the date of this Order to file an
amended petition for a writ of habeas corpus that includes all claims that he has properly
exhausted.
As Tucker prepares his amended petition, the Court notes that in his recent petition for a
writ of error coram nobis, Tucker exhausted only his claim that his appellate counsel was
ineffective because she failed to appeal the trial court's denial of trial counsel's request for a
mistrial. He did not raise either his complaint that appellate counsel failed to obtain necessary
documents on his behalf or his charge that she failed to appeal the trial court's decisions made at
a suppression hearing. Were he to include either of these claims in his amended petition, the
Court would be again presented with a mixed petition. In that event, the Court's only available
courses of action under the circumstances of this case would be to dismiss the entire petition or
to allow Tucker an opportunity to withdraw the unexhausted claims.
Where a habeas petition presents both exhausted and unexhausted claims, the district
court may "exercise discretion either to stay further proceedings on the remaining portion of the
petition or to dismiss the petition in its entirety." Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.
2001). The grant ofa stay, however, not only frustrates the objectives of "encouraging finality"
and "streamlining federal habeas proceedings," it also "effectively excuses a petitioner's failure
to present his claims first to the state courts." Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
As a result, a stay and abeyance of a mixed petition is appropriate only in the "limited
circumstances" where there is "good cause for the petitioner's failure to exhaust his claims first
in state court," the unexhausted claims are not "plainly meritIess," and the prisoner has not

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engaged in "abusive litigation tactics or intentional delay." Id. at 277-78. If a court confronted
with a mixed petition determines that stay is inappropriate, it "should allow the petitioner to
delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire
petition would unreasonably impair the petitioner's right to obtain federal relief." Id. at 278.
Since Tucker would be unable to demonstrate good cause for his failure to exhaust his
outstanding claims of ineffective assistance of appellate counsel, the grant of an additional stay
in this case would be inappropriate. The Court already granted a stay to allow Tucker to exhaust
his ineffective assistance of appellate counsel claims and is aware of no reason why he could not
have raised all his complaints about his appellate counsel in his recent writ of error coram nobis.
Accordingly, should Tucker choose to include these unexhausted claims in his amended petition,
the Court would either dismiss the entire petition without prejudice or allow Tucker an
opportunity to withdraw any unexhausted claims. I It is important to note that a dismissal at this
time would effectively deprive Tucker of all federal habeas review because, pursuant to the oneyear statute of limitations for actions brought under 28 U.S.C. § 2254, any subsequent re-filing
of this petition would likely be time-barred. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001)
(filing of federal habeas petition does not toll its one-year statute oflimitations). Proceeding
with Tucker's exhausted claims only, meanwhile, would have the effect of making any later
petition filed by Tucker, including one asserting either ofthe currently unexhausted claims, a
"second or successive" petition subject to the strict limitations on such petitions. See 28 U.S.C.

I The Court notes that it may also dismiss any unexhausted claims on the merits, a course of action here that would
be effectively the same as proceeding with Tucker's exhausted claims only. See 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State."). The Court, however, would consider this path only if the
claim is "patently frivolous or ifit is perfectly clear that it does not raise even a colorable claim." Ramos v. Keane,
No. 98 Civ. 1604,2000 WL 12142, at *5 (S.D.N.Y. Jan. 6,2000) (internal quotation marks and citation omitted).

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§ 2244(b); Murray v. Greiner, 394 F.3d 78,80-81 (2d Cir. 2005); Reyes v. Phillips, No. 02 Civ.
7319,2005 WL 2173812, at *8 (S.D.N.Y. Sept. 6, 2005).

CONCLUSION
For the foregoing reasons, the Court grants Tucker thirty (30) days from the date of this
Order to file an amended petition for a writ of habeas corpus that includes all claims that he has
properly exhausted. The Court notes further that should Tucker attempt to seek review of any
unexhausted claims in his amended petition, it is unlikely that the Court will grant him an
additional stay given that the Court has already afforded him an opportunity to pursue
unexhausted claims. Within thirty (30) days of this Order, Tucker shall also file a memorandum
oflaw in support of the claims set forth in the amended petition. Within thirty (30) days of
receipt of Tucker's amended petition and memorandum oflaw, respondent shall show cause
before this Court by the filing of a return to the petition, why a writ of habeas corpus should not
be issued and serve a copy of the return on Tucker. Tucker, within thirty (30) days of receipt of
a copy of the return, shall file his reply, if any, with the Clerk of Court.

SO ORDERED.
Dated: Brooklyn, ~ew York
Novemberlf',2012

/S/ Chief Judge Amon
Carol Bagley AlhOil
/J )
Chief United Stat~ DistMt fudge

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