Wilson v. Capra

Filing 11

ORDER denying 9 Motion to Stay. For the reasons discussed in the attached memorandum and order, the Court denies the motion for a stay without prejudice. However, the Court grants petitioner leave to amend the petition to add the new claim he seeks to file in state court and to renew his motion for abeyance. Ordered by Judge Margo K. Brodie on 12/14/2017. (Chu, Chan Hee)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JERMAINE WILSON,
Petitioner,

MEMORANDUM & ORDER
15-CV-6495 (MKB)

v.
SUPERINTENDENT MICHAEL CAPRA,
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Jermaine Wilson brings the above-captioned habeas corpus petition pursuant to
28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his
federal constitutional rights. (Pet., Docket Entry No. 1.) Petitioner’s claims arise from a
judgment of conviction in New York State Supreme Court, Kings County, for murder in the
second degree.1 (Id. at 1.) Currently before the Court is Petitioner’s motion to hold his habeas
petition in abeyance to permit him to file a motion to vacate his conviction in state court pursuant
to New York Criminal Procedure Law (“C.P.L.”) section 440.10. (Pet. Mot. Stay (“Pet. Mot.”),
Docket Entry No. 9.) For the reasons set forth below, Petitioner’s motion for a stay is denied
without prejudice.
I.

Background
On April 16, 2010, Petitioner was convicted of murder in the second degree. (Pet. 1.)

The Appellate Division, Second Department affirmed the conviction on March 19, 2014. People
v. Wilson, 981 N.Y.S.2d 812 (App. Div. 2014). Leave to appeal was denied on September 2,

1

Because the petition and the motion to stay are not consecutively paginated, the Court
refers to the page numbers assigned by the Electronic Case Filing (“ECF”) system.

2014. People v. Wilson, 24 N.Y.3d 966 (2014). Thereafter, Petitioner filed a timely habeas
corpus petition on November 2, 2015 based on five grounds exhausted in state court. (See Pet.
5–7, 9–10, 13.) On November 21, 2017, Petitioner requested a stay and abeyance of his habeas
petition so that he may seek to vacate his judgment in state court pursuant to C.P.L. section
440.10. (See Pet. Mot. 1.)
II. Stay and abeyance
When a habeas petition is a “mixed” one — that is, one containing both exhausted and
unexhausted claims — a district court has discretion to hold the petition in abeyance to permit a
petitioner to exhaust the unexhausted claims, provided that the “petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication
that [he] engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278
(2005).
Here, Petitioner fails to state on what basis he seeks to vacate his conviction in state
court. In the motion, Petitioner only states that he seeks an abeyance so that he may “file a
criminal procedure law [440.10] motion.” (Pet. Mot. 1.) Without any information and details as
to the claim Petitioner seeks to file as part of his 440.10 motion, the Court cannot determine
whether Petitioner has shown good cause or whether the claim is potentially meritorious. See
McNeil v. Capra, No. 13-CV-3048, 2015 WL 4719697, at *2 (S.D.N.Y. Aug. 7, 2015) (denying
motion to stay without prejudice where petitioner failed to “provide any information concerning
his failure to previously exhaust the proposed claim”).
In addition, the petition does not appear to be “mixed” as it only contains the exhausted
claims presented to the Appellate Division. In some cases, courts will grant a petitioner’s
application to amend a petition to add an unexhausted claim, and will apply the factors (good
cause, potentially meritorious claims, and no intentionally dilatory litigation tactics) established
2

in Rhines to hold a petition in abeyance to permit the petitioner to exhaust the newly added
claim. Rhines, 544 U.S. at 269; see also Nickels v. Conway, No. 10–CV–0413, 2013 WL
4403922, at *6 (W.D.N.Y. Aug. 15, 2013). Here, Petitioner does not seek leave to amend the
petition. “Under such circumstances . . . courts in this circuit have generally required the
petitioner first to seek leave to amend the petition to add the new claim before applying
the Rhine[s] test.” Madrid v. Ercole, No. 08-CV-4397, 2012 WL 6061004, at *2 (E.D.N.Y. Dec.
6, 2012) (collecting cases).
III. Conclusion
For the foregoing reasons, the Court denies Petitioner’s motion for a stay without
prejudice.2 However, the Court grants Petitioner leave to amend the petition to add the new
claim he seeks to file in state court and to renew his motion for abeyance.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: December 14, 2017
Brooklyn, New York

2

As Respondents argue, Petitioner’s new claim may be time-barred. Nevertheless, even
if unlikely, the Court reserves judgment should Petitioner be able to demonstrate that an
equitable exception applies.
3