Scott v. Rock
MEMORANDUM AND ORDER: Petitioner's motion to amend his Petition is granted to the extent of permitting amendment to add the "newly discovered evidence" claim raised in Petitioner's § 440 motion dated 2/10/2011. Petit ioner shall not raise the Brady claim discussed in his July 14 Letter unless he first provides evidence to this Court to establish that he has exhausted that Brady claim in State court. Such evidence, if any, must be provided to the Court on or before 2/15/2013, and attached to a letter / motion seeking reconsideration of this Memorandum and Order. Unless Petitioner moves for reconsideration, Petitioner shall have until 3/1/2013, in which to file an Amended Petition. Respond ent shall have until 3/29/2013, in which to file a response to that Petition, and Petitioner shall have until 4/15/2013, in which to file a reply. If Petitioner does not file an Amended Petition within the time allowed, this Court may proceed to adjudicate this action without further notice. Petitioner's 29 motion for stay and abeyance is denied without prejudice to renewing the motion. Petitioner's 25 motion for appointment of counsel is denied at this juncture. Petitioner's other motions are denied without prejudice. SO ORDERED by Judge Sandra L. Townes, on 1/24/2013. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)
IN CL~K'S OFFICI!
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
* JAN 3 0 2013 *
MEMORANDUM AND ORDER
ROCK, Superintendent of the Upstate Correctional
TOWNES, United States District Judge:
In December 2010, petitioner Kwame Scott ("Petitioner"), proceeding pro se,
commenced this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254 (the "Petition"), challenging his 2007 conviction for murder in the second degree. In
February 2011, Petitioner moved in the Supreme Court of the State of New York, Kings County,
to vacate his conviction pursuant to New York Criminal Procedure Law §440.1 0(1 )(g). That
motion having since been denied, Petitioner now moves pursuant to Rule 15(a) of the Federal
Rules of Civil Procedure to amend his Petition; to stay this action in order to permit him to
e)(haust additional grounds for habeas corpus relief; and for appointment of counsel. For the
reasons stated below, Petitioner's Rule 15(a) motion is granted to the e)(tent of permitting
Petitioner to amend his Petition to add the "newly discovered evidence" claim raised in the §440
motion. Petitioner's other motions are denied without prejudice.
Petitioner commenced this action in December 2010 by filing his Petition in the United
States District Court for the Southern District of New York (the "SDNY"). Since that Petition
sought to challenge a judgment of conviction entered in the Supreme Court of the State of New
York, Kings County, the action was promptly transferred to this Court by the SDNY. By Order
to Show Cause dated January 5, 2011, this Court directed Respondent to "show cause ... , by the
filing of a return to the petition, why a writ of habeas corpus should not be issued." Order to
Show Cause dated Jan. 5,2011, at 1. The deadline for filing that return was subsequently
extended, at Respondent's request, to March 11,2011.
On February 17, 2011, Petitioner wrote a letter to the Clerk of Court, informing him that
he was filing a "440.10 motion" in State court. Although Petitioner may not have sent a copy of
this letter to Respondent, the letter was uploaded onto this Court's Electronic Case Filing
("ECF") system on February 21, 2011. Moreover, Respondent's counsel - the Office of the
Kings County District Attorney (the "DA") - was doubtless already aware of the §440 motion,
which had been served on or about February 10, 2011, and was returnable March 17, 2011.
Nonetheless, Respondent's counsel did not seek a further extension of time, but filed a return to
the Petition on March 10, 2011.
Petitioner's §440 motion sought to vacate Petitioner's 2007 conviction on the ground of
newly discovered evidence: namely, an affidavit dated January 14,2011, from one Leitoya
Dixon, a woman who claimed to be an eyewitness to the murder for which Petitioner had been
convicted. In her affidavit, Ms. Dixon stated that the shooter was one Dwight Clark, also known
as "Biggie," and not Petitioner. In addition, Ms. Dixon stated that, several months after the
shooting, she had divulged this information to a man who identified himself as Petitioner's
defense lawyer. However, that man was not David Schwartz - the lawyer who represented
Petitioner at trial - and did not contact her again, except to ask a question regarding another
eyewitness to the shooting. Ms. Dixon claimed that she subsequently became fearful of
retaliation from Clark and, therefore, did not tell anyone else of her observations of the shooting.
On July 19,2011, Justice Deborah A. Dowling of the Kings County Supreme Court
denied Petitioner's §440 motion, noting, inter alia, that Ms. Dixon had not come forward earlier
even though she alleged that Clark left her neighborhood in 2007. On August 24, 2011,
Petitioner wrote a letter to the Clerk of Court, stating that he was seeking leave to appeal the
denial of the §440 motion and asking for information regarding how to amend his Petition.
About one month later, Petitioner wrote to this Court, requesting that his Petition be held in
abeyance until he received "a Decision in regards to a 440 motion that was placed in to the
Lower Courts." Letter to Hon. Sandra L. Townes from Kwame Scott, dated Sept. 26,2011, at 1.
Petitioner stated that he wished to "add this motion to [his] Petition," but provided no details
regarding the basis for the §440 motion. Id.
In letters dated May 28 and 31, 2012, Petitioner again wrote to the Clerk of Court,
specifically requesting permission to amend his Petition. In response to these letters, this Court
issued an order dated July 3, 2012, advising Petitioner that he could not amend his Petition as of
right and explaining that he would have to either (1) obtain the written consent of Respondent or
(2) make a motion pursuant to Rule IS(a) of the Federal Rules of Civil Procedure, The Court
directed Petitioner to seek Respondent's written consent to amend the Petition by sending a letter
to the DA on or before July 20,2012, describing the amendment(s) Petitioner wanted to make.
The Court further directed the DA to respond to Petitioner's letter by July 30, 2012, by stating
whether Respondent would consent to amendment of the petition. Finally, the Court ordered:
[I]f Respondent does not consent, Petitioner shall serve a motion to
amend the petition on the Respondent by mailing a copy of the
motion to the DA on or before August 17,2012. In light of
Petitioner's pro se status, that motion may take the form of a letter.
However, the letter must expressly state how Petitioner wishes to
amend his petition, state the issue(s) Petitioner seeks to add, and
explain why the issue(s) could not have been exhausted sooner.
Petitioner complied with this Court's order by sending a letter to the DA dated July 14,
2012 (the "July 14 Letter"). In that letter, Petitioner alluded to two additional grounds for habeas
corpus relief. First, Petitioner sought to amend his Petition to add the "newly discovered
evidence" issue raised in his §440 motion. Second, Petitioner asserted that Assistant District
Attorney Susan Millus, a prosecutor who had appeared in pre-trial proceedings, had committed a
Brady violation by failing to reveal Dixon's exculpatory version of events.
Petitioner's Brady argument relied primarily on a pre-trial sidebar conference, in which
ADA Millus stated that a woman with a tattoo on her face had separately approached both a
confidential witness and ADA Millus herself, stating that she knew Petitioner and knew the
confidential witness's identity. ADA Millus did not know the woman, but stated that she
claimed to be Petitioner's sister. At the sidebar, the ADA expressed concern that the woman
might divulge the witness's identity to Petitioner, thereby enabling Petitioner to tamper with the
witness. Although ADA Millus did not even suggest that the woman had discussed the shooting
with her or with the three detectives who were with the ADA at the time, Petitioner assumed that
the woman was Dixon, who also had tattoos on her face, and that she had divulged exculpatory
information to the prosecutor.
The DA responded to Petitioner's July 14 Letter in a letter addressed to the Court and
dated July 30,2012 (the "July 30 Letter"). In that letter, the DA opposed Petitioner's request for
permission to amend the Petition. The DA asserted that the Petitioner's first new ground for
habeas corpus relief - the newly discovered evidence claim - was time-barred because it did not
"relate back" to the original Petition. The DA also argued that Petitioner's second ground was
procedurally barred because the Brady issue had not been raised in any State court proceedings.
On August 13,2012, this Court received four submissions from Petitioner: (1) a copy of
the July 14 Letter; (2) a one-paragraph note dated July 31, 2012, in which Petitioner stated that
he had not yet received a response from the DA and, therefore, assumed that the DA had no
objection to his amending the Petition; (3) a 27-page document, entitled "Application for Leave
to File a Certificate of Appealability," which listed several new grounds for habeas corpus relief;
and (4) an application for appointment of counsel. Approximately one month later, this Court
received Petitioner's reply to the DA's July 30 Letter. Finally, in mid-January 2013, this Court
received a letter from Petitioner dated January 3,2013, in which Petitioner asked this Court to
hold his action in abeyance to enable him to exhaust other, unspecified claims in State court.
The submissions which this Court received from Petitioner on August 13,2012, can be
construed in at least two ways. First, they can be strictly construed as (1) the letter to the DA
required by this Court's July 3,2012, order; (2) a letter notifying this Court that the DA failed to
respond to Petitioner's letter within the time allowed by the July 3,2012, order; and (3) a
premature motion for a Certificate of Appealability. Alternatively, the submission can be
construed as (1) a letter motion to amend the Petition; (2) a letter requesting that the motion be
deemed unopposed; and (3) a copy of a proposed amended petition.
There are several reasons to construe Petitioner's submissions in the latter manner. First,
all of these submissions were received by the Court on August 13,2012 - only four days before
the August 17, 2012, deadline for filing the motion to amend. Second, Petitioner's oneparagraph note dated July 31, 2012, stated, inter alia, that Petitioner was enclosing a copy of his
"amend[ed] petition." The "Application for Leave to File a Certificate of Appealability," which
contains six enumerated "points," is the only document submitted with Petitioner's one5
paragraph note which could possibly be construed as a proposed amended petition. Third,
Petitioner subsequently filed a "reply" to the DA's July 30 Letter, which opposed Petitioner's
request for permission to amend the Petition.
Moreover, this Court recognizes its obligation to "construe ... liberally" the submissions
of a pro se litigant and to '''interpret them to raise the strongest arguments that they suggest. '"
Pabon v. Wright, 459 F.3d 241,248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). In light of this obligation and the facts set forth in the above paragraph, this
Court construed Document No. 23 - the copy of the July 14 Letter to the DA, which Petitioner
filed on August 13,2012 - as Petitioner's motion to amend the Petition and docketed this
document as a "Letter Motion to Amend/Correct/Supplement the Petition." It is unclear whether
Respondent construed Document No. 23 in this manner, since Respondent never re-filed his July
30 Letter opposing the motion to amend or otherwise responded to Petitioner's August 13,2012,
submissions. However, the DA's July 30 Letter fully addresses all of the arguments raised in
Petitioner's July 14 Letter. Accordingly, this Court construes Petitioner's motion to amend the
Petition as fully briefed and will proceed to adjudicate it.
The Motion to Amend the Petition
Rule 15(a)(2) of the Federal Rules of Civil Procedure specifically provides that "the court
should freely give leave [to amend a pleading] when justice so requires." The Supreme Court
has made clear that Rule 15(a)(2)'s "mandate is to be heeded." Tokio Marine & Fire Ins. Co. v.
Employers Ins. o/Wausau, 786 F.2d 101, 103 (2d Cir. 1986) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)). Thus, "[w]hen a party requests leave to amend its complaint, permission
generally should be freely granted." Anderson News, L.L.C v. Am. Media, Inc., 680 F.3d 162,
185 (2d Cir. 2012). However, "[l]eave to amend may properly be denied if the amendment
would be futile," id (citing Farnan, 371 U.S. at 182), or "where necessary to thwart tactics that
are dilatory, unfairly prejudicial or otherwise abusive." Ching v. United States, 298 F.3d 174,
180 (2d Cir. 2002).
In the July 30 Letter opposing Petitioner's request for permission to amend the Petition,
Respondent principally argues that amendment would be futile. First, Respondent argues that the
one-year period of limitations set forth in 28 U.S.C. §2244(d)(1) precludes Petitioner from
amending his Petition to add the "newly discovered evidence" claim raised in Petitioner's §440
motion unless that claim "relates back" to the original Petition. Second, Respondent argues that
the Brady issue raised in Petitioner's July 14 Letter is procedurally barred since "this claim was
never presented to the state courts in any manner whatsoever." July 30 Letter at 2.
With respect to the first of these arguments, Respondent has not established that the
"newly discovered evidence" claim is time-barred. As Respondent correctly notes, the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year period
oflimitations with respect to claims for habeas relief. However, under 28 U.S.C. §2244(d)(1),
the one-year period does not invariably run from the date on which a petitioner's conviction
becomes final. Rather, §2244(d)(I) provides that limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
Moreover, under 18 U.S.C. §2244(d)(2), "[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period oflimitation under [§2244(d)(1)]."
In this case, it is unclear precisely when Petitioner, through the exercise of due diligence,
could have learned of Ms. Dixon's exculpatory account of the shooting. In the January 14,2011,
affidavit which Ms. Dixon executed in connection with Petitioner's §440 motion, Ms. Dixon
states only that she is "now coming forward ... to set the record straight" about the shooting.
Affidavit of Leitoya M. Dixon in Support of Motion to Vacate, dated Jan. 14,2011, at ~16
(emphasis added). However, neither this affidavit nor the affidavit of Patrick Michael Megarothe attorney who filed the §440 motion of Petitioner's behalf - indicates precisely when Ms.
Dixon first spoke to Petitioner or to Mr. Megaro.
It is also unclear precisely how long Petitioner's §440 motion was pending before the
State courts. According to documents supplied by Respondent's counsel, the motion was filed
on February 10,2011, and was denied by Justice Dowling on July 19,2011. There is no
evidence as to whether or when (1) Petitioner applied for leave to appeal this denial of his §440
motion and (2) leave was denied by the Appellate Division of the Supreme Court of the State of
New York. This Court notes, however, that Petitioner's letter dated September 26,2011, implied
that he had sought leave to appeal and that leave had not yet been denied as of that date. See
Letter to Hon. Sandra L. Townes from Kwame Scott, dated Sept. 26, 2011 (requesting that this
case be held in abeyance until Petitioner received "a Decision in regards to a 440 motion that was
placed in to the Lower Courts").
Respondent has not provided any evidence that Petitioner, in the exercise of due
diligence, could have learned of Ms. Dixon's exculpatory account prior to January 14,2011.
Moreover, the evidence before this Court suggests that Petitioner's §440 motion was pending for
at least the 228 days between February 10 and September 26,2011. Assuming that Petitioner
first learned of Ms. Dixon's exculpatory evidence on January 14,2011, and that the §440 motion
remained pending for 228 days, the one-year limitations period relating to the newly discovered
evidence claim would not have expired until at least August 29,2012. By that time, Petitioner
had repeatedly asked this Court for permission to amend his Petition, had unsuccessfully
requested that Respondent stipulate to that amendment, and had already filed a copy of the July
14 Letter which this Court construes as his motion to amend the Petition.
For these reasons, this Court cannot find, at this juncture, that it would be futile to permit
Petitioner to amend his Petition to raise the claim set forth in Petitioner's §440 motion. In
responding to the amended petition, Respondent may renew this timeliness argument if evidence
in the record establishes that Petitioner, in the exercise of due diligence, could have learned of
Ms. Dixon's exculpatory account prior to January 14,2011, and/or that the §440 motion was
exhausted prior to September 26, 2011.
With regard to Respondent's second argument, this Court agrees with Respondent that it
may be futile for Petitioner to add a claim regarding ADA Millus's failure to disclose Brady
material. Under 28 U.S.C. §22S4(b)(I), "[a]n application for a writ of habeas corpus on behalf
of a person in custody pursuant to a judgment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the remedies available in the courts of the State."
This exhaustion requirement "is not satisfied unless the federal claim has been 'fairly presented'
to the state courts." Rosa v. McCray, 396 F.3d 210,217 (2d Cir. 2005). "A petitioner satisfies
the fair presentation aspect of the exhaustion requirement by presenting the essential factual and
legal premises of his federal constitutional claim to the highest state court capable of reviewing
it." Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003) (internal quotation marks omitted).
This Court has reviewed Petitioner's appellate brief and the §440 motion dated February
10,2011. Neither of these submissions fairly presents the Brady claim which Petitioner now
seeks to raise. Moreover, there is nothing to suggest that Petitioner filed any other postconviction motions prior to filing his motion to amend the Petition. The Petition unequivocally
states that Petitioner had not "filed any other petitions, applications, or motion concerning [his]
judgment of conviction in any state court" prior to filing the Petition in this case, and Justice
Dowling's July 19,2011, order does not allude to any other post-conviction motions.
Accordingly, Petitioner shall not raise the Brady claim in his Amended Petition unless he first
provides evidence to this Court to establish that he has exhausted that Brady claim in State court.
Stay and Abeyance
In his letter dated January 3, 2013, Petitioner seeks to stay this case so that he can
"address ... additional issues" in State court. Petitioner does not explain what issues he seeks to
exhaust, or explain why those issues could not have been exhausted sooner.
As recently as March 2005, stays of the sort that Petitioner seeks were routinely granted
in this Circuit pursuant to Zarvela v. Artuz, 254 F.3d 374, 481 (2d Cir. 2001). However, on
March 30, 2005, the United States Supreme Court imposed new restrictions with respect to the
use of the "stay and abeyance" procedure. In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court held that, while district courts have discretion to grant stays, "stay and abeyance should be
available only in limited circumstances." Id. at 277. Specifically, the Supreme Court held that a
stay should be granted only if a petitioner can show "good cause" for failing to exhaust all
available State remedies earlier and, even then, only if the unexhausted claims are not "plainly
In light of Rhines, this Court cannot grant a stay and hold these proceedings in abeyance
on the strength of Petitioner's one-page letter dated January 3,2013. If Petitioner wishes to seek
a stay and abeyance, he must file another application, demonstrating "good cause" for his failure
to raise previously the claim he is now planning to exhaust in State court. In addition, he must
explain the claims to be raised in his post-conviction motion with sufficient particularity to
enable this Court to make an independent determination that his claims are not "plainly
In determining when and whether to re-apply for stay and abeyance, petitioner may wish
to consider whether the claim(s) he is planning to exhaust in State court can be raised in this
action. In order to raise any such claims, Petitioner will have to move to amend the Petition in
this case yet again pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. See Mayle v.
Felix, 545 U.S. 644,655-56 (2005). If the one-year period oflimitations relating to a claim has
already run, an amendment to add that claim to the Petition in this case will be denied unless the
new claim "relates back" to the date of the original pleading. A claim "relates back" if it arises
"out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading." Fed. R. Civ. P. 15(c)(2). A claim "does not relate back (and thereby escape
AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that
differ in both time and type from those the original pleading set forth." Mayle, 545 U.S. at 650.
Appointment of Counsel
This Court also cannot grant Petitioner's request for counsel. In habeas corpus cases, a
district court is required to appoint counsel for qualified indigents only if an evidentiary hearing
is warranted. See Rule 8(c) of the Rules Governing Section 2254 Cases in the United States
District Courts. However, "a court may appoint counsel at an earlier stage if it deems
appointment desirable." Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
A district court considering whether to request an attorney for a pro se civil litigant must
first determine whether the litigant's position seems "likely to be of substance." Cooper v. A.
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (quoting Hodge v. Police Officers, 802 F.2d 58,
61 (2d Cir. 1986)). Only if a litigant's claims meet this "threshold requirement," should a court
consider other factors, such as the "plaintiffs ability to obtain representation independently, ...
his ability to handle the case without assistance in light of the required factual investigation,
[and] the complexity of the legal issues .... " Cooper, 877 F.2d at 172.
In this case, this Court has no reason to believe that an evidentiary hearing will be
necessary or warranted. Petitioner was represented by counsel on appeal and during the §440
proceedings and those attorneys have already created a record on which Petitioner can base his
claims for habeas corpus relief. While counsel might assist Petitioner in further developing his
Brady claim against ADA Millus, there is nothing to suggest that this claim has any merit
whatsoever. To be sure, ADA Millus admitted at a sidebar conference that, while in the
company of three detectives, she had been approached by a woman with a tattoo on her face who
professed to know Petitioner and who asked about the case. However, there is nothing to suggest
that this tattooed woman - even if she were Ms. Dixon - gave ADA Millus an account of the
shooting. Indeed, Ms. Dixon states that she gave her account of the shooting to a man who
identified himself as a defense lawyer, not to a female prosecutor in the company of several
While this Court can "request an attorney to represent any person unable to afford
counsel," 28 U.S.C. §1915(e)(1), it declines to do so at this juncture. This Court has conducted a
thorough review of the Petition, the §440 motion, and the responses thereto and concludes that
the Amended Petition is not so likely to be of substance as to warrant appointment of counsel.
Moreover, even if this Court concurred with Petitioner's assessment of the merits of this case, it
would not appoint counsel for two reasons. First, this Court does not find the legal or factual
issues in this case to be particularly complex. Second, the fact that Petitioner's submissions are
unusually articulate and well-researched suggests that Petitioner has the ability to represent
For the reasons set forth above, Petitioner's motion to amend his Petition is granted to the
extent of permitting amendment to add the "newly discovered evidence" claim raised in
Petitioner's §440 motion dated February 10,2011. Petitioner shall not raise the Brady claim
discussed in his July 14 Letter unless he first provides evidence to this Court to establish that he
has exhausted that Brady claim in State court. Such evidence, if any, must be provided to the
Court on or before February 15,2013, and attached to a letter/motion seeking reconsideration of
this Memorandum and Order.
Unless Petitioner moves for reconsideration, Petitioner shall have until March 1,2013, in
which to file an Amended Petition. That submission shall be entitled, "Amended Petition," shall
bear Docket Number 1O-CV -5989 (SLT), and shall not raise any issues other than (1) the ones
raised in the original Petitioner and (2) the "newly discovered evidence" claim raised in
Petitioner's §440 motion dated February 10,2011. Respondent shall have until March 29,2013,
in which to file a response to that Petition, and Petitioner shall have until April 15,2013, in
which to file a reply. If Petitioner does not file an Amended Petition within the time allowed,
this Court may proceed to adjudicate this action without further notice.
Petitioner's motion for stay and abeyance is denied without prejudice to renewing the
motion. In accordance with the requirements of Rhines v. Weber, supra, the renewed motion
must demonstrate "good cause" for Petitioner's failure to raise previously the claim(s) he is now
planning to exhaust in State court. In addition, Petitioner must set forth the claim(s) he is
planning to raise in State court with sufficient particularity to enable this Court to make an
independent determination that these claims are not "plainly meritless."
Petitioner's motion for appointment of counsel is denied at this juncture.
/S/ Judge Sandra L. Townes
/SANDRAL. TOWNES '
United States District Judge
Dated: January ;24, 2013
Brooklyn, New York
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