Spells v. Lee

Filing 7

ORDER denying without prejudice 6 Motion to Stay. For the reasons set forth in the attached Order, petitioner's motion to stay his petition for a writ of habeas corpus is denied without prejudice. If petitioner wishes to add a new ineffective assistance of counsel claim to the instant petition, he must address whether, given that the proposed amendment is not timely, the amendment relates back to his original petition pursuant to Fed. R. Civ. P. 15. If petitioner chooses to file a motio n to amend and can establish that his new claim relates back to the claims in his original petition, he shall concurrently file a motion to amend and a motion to stay his habeas petition by July 8, 2011. Respondent is directed to respond to petitioner's motion to amend by July 15, 2011. The respondent shall serve a copy of this Order upon petitioner and file a certificate of service by June 24, 2011. Ordered by Judge Kiyo A. Matsumoto on 6/23/2011. (Zeehandelaar, Rachel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
CHARLES SPELLS, pro se
Petitioner,
ORDER
-against11-CV-1680 (KAM)
WILLIAM LEE,
Respondent.
------------------------------------X
MATSUMOTO, United States District Judge:
Pro se petitioner Charles Spells (the “petitioner”)
requests that his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be stayed so that he may exhaust
an additional claim in state court.
(“Stay Mot.”).)

(ECF No. 6, Stay Motion

Respondent William Lee (the “respondent”)

does not oppose petitioner’s motion for a stay.

(ECF No. 3,

Memorandum of Law (“Resp. Mem.”) at 1-3.)
DISCUSSION
On March 24, 2011, petitioner timely filed his
habeas petition pursuant to 28 U.S.C. § 2254 (the “petition”),
alleging that the prosecution “failed to disprove appellant’s
justification defense beyond a reasonable doubt, and the
verdict was against the weight of the evidence.”
Petition at 2.)

(ECF No. 1,

Based on the information available in the

petition, petitioner appears to have previously raised, and
exhausted, this claim in state court.
1

(Id.)

On June 8, 2011, petitioner moved to stay his
petition (the “stay motion”) during the pendency of his motion
for a writ of error coram nobis regarding an ineffective
assistance of counsel claim in state court.

(Stay Mot.)

Respondent does not oppose petitioner’s motion for a stay of
the petition.

(ECF No. 3, Resp. Mem. at 1-3.)

Because petitioner did not raise the ineffective
assistance of counsel claim in his petition filed on March 24,
2011, his petition contains only exhausted claims and is
therefore not a “mixed petition” under Rose v. Lundy, 455 U.S.
509 (1982), subject to the standards of Rhines v. Weber, 544
U.S. 269 (2005), governing the grant of a stay in the habeas
context.

Therefore, petitioner’s stay motion is premature.

See Bethea v. Walsh, No. 09-cv-5037, 2010 WL 2265207, at *1
(E.D.N.Y. June 2, 2010) (finding premature petitioner’s motion
to stay his habeas petition pending the filing of a N.Y.C.P.L.
§ 440.10 motion where petitioner had not raised the
anticipated claims in his habeas petition and the petition was
therefore not “mixed”).

Accordingly, before the court can

address petitioner’s stay motion, petitioner must first move
to amend his current petition pursuant to Federal Rule of
Civil Procedure 15(a) to add the new, unexhausted claim for
ineffective assistance of counsel.

(Id.)

Furthermore, a petition for a writ of habeas corpus
2

filed by a person in state custody is governed by, inter alia,
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).

The AEDPA imposes a one-year statute of

limitations for seeking federal habeas relief from a state
court judgment.

28 U.S.C. § 2244(d)(1); see Lawrence v.

Florida, 549 U.S. 327, 331 (2007); Saunders v. Senkowski, 587
F.3d 543, 546 (2d Cir. 2009); Clark v. Artus, No. 09-CV-3577,
2010 WL 1269797, at *3 (E.D.N.Y. Apr. 1, 2010).

Pursuant to

the AEDPA, the limitation 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 review; (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 diligence.
28 U.S.C. § 2244(d)(1).

The one-year statute of limitations

also applies to any amendments petitioner makes to his
petition, unless the new claims in the amendment relate back
to the original petition.

Fed. R. Civ. P. 15(c) (“An

amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or
3

defense that arose out of the conduct, transaction, or
occurrence set out--or attempted to be set out--in the
original pleading”); see also Gibson v. Artus, 407 F. App’x
517, 519 (2d Cir. 2010).
Here, on December 28, 2009, the New York Court of
Appeals denied petitioner leave to file an appeal of the
Appellate Division’s denial of his direct appeal.
2.)

(Pet. at

Petitioner’s conviction thus became final ninety days

later, on March 28, 2010.

Petitioner then filed the petition

for a writ of habeas corpus on March 24, 2011 (Pet. at 14),
with four days to spare under the AEDPA statute of
limitations.

The statute of limitations has since expired.

Accordingly, petitioner may only amend his petition if his
proposed new claim for ineffective assistance of counsel
relates back to his original claims pursuant to Fed. R. Civ.
P. 15.

If petitioner can demonstrate that his proposed new

claim relates back to the claims in his petition filed on
March 24, 2011, prior to the expiration of the AEDPA statute
of limitations, the court will then consider the merits of
petitioner’s motion to amend his petition.

If leave to amend

is granted, only then will the court consider petitioner’s
motion to stay.
CONCLUSION
Petitioner’s motion to stay his petition is denied
4

without prejudice.

If petitioner wishes to add a new

ineffective assistance of counsel claim to the instant
petition, he must address whether, given that the proposed
amendment is not timely, the amendment relates back to his
original petition.

In addition, petitioner must attach to his

motion to amend: (1) a proposed amended petition that includes
the claims raised in his current petition and the new claim he
has yet to exhaust; (2) copies of the writ of error coram
nobis motion briefs and any state court decision on that
motion, if available; and (3) copies of any other state court
motions filed by petitioner, seeking post-conviction or
collateral review.
If petitioner chooses to file a motion to amend and
can establish that his new claim relates back to the claims in
his original petition, he shall concurrently file a motion to
amend and a motion to stay his habeas petition by July 8,
2011.

Petitioner should be aware that under Rhines, this

court can grant requests to stay only when: (1) there is good
cause for the petitioner’s failure to exhaust the unexhausted
claims in state court before bringing a federal habeas
petition; and (2) the unexhausted claims are not “plainly
meritless.”

Rhines, 544 U.S. at 277.

In his submission,

petitioner should state when he discovered the factual basis
for his new claims.
5

Respondent is directed to respond to petitioner’s
motion to amend by July 15, 2011.

The respondent shall serve

a copy of this Order upon petitioner and file a certificate of
service by June 24, 2011.

SO ORDERED.
Dated: June 23, 2011
Brooklyn, New York
_______

/s/_____

_

KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

6