Card v. Griffin

Filing 17

MEMORANDUM and ORDER: The motion 13 to strike is denied. The States remaining arguments, including that the Amended Petition constitutes an abusive piecemeal litigation tactic[], are without merit. The State may respond to the Amended Petition within 14 days of entry of this Order. Ordered by Judge Frederic Block on 1/9/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAVIER CARD,
MEMORANDUM & ORDER
17-cv-00221-FB

Petitioner,
-againstTHOMAS GRIFFIN, Superintendent,
Green Haven Correctional Facility
Respondent.
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Appearances:
For the Petitioner:
DANIEL R. PEREZ
Sidley Austin LLP
1501 K Street, NW
Washington, DC 20005

For the Respondent:
LORI GLACHMAN
Kings County District Attorney’s Office
350 Jay Street
Brooklyn, NY 11201

BLOCK, Senior District Judge:
On September 5, 1995, Javier Card was convicted by a jury of second degree
murder, reckless endangerment, and criminal possession of a weapon. See Resp.’s Ex.
B. The State moves to strike Card’s Amended 28 U.S.C. § 2254 Petition as untimely
and to “thwart petitioner’s piecemeal litigation tactics.” The motion is denied.
Card filed his Petition on January 13, 2017 raising several claims of ineffective
assistance of counsel based on trial counsel’s conduct during pre-trial investigations,

plea negotiations, and the trial itself. On April 19, 2017, the State responded to the
Court’s Order to Show Cause. On May 10, 2017—21 days later— Card filed his
Amended Petition raising the same ineffective assistance of counsel claims with
additional arguments and citations in support.
A habeas petition “may be amended or supplemented as provided in the rules of
procedure applicable to civil actions.” 28 U.S.C.A. § 2242; Mayle v. Felix, 545 U.S.
644, 649 (2005). Under Federal Rule of Civil Procedure 15(a)(1)(B), if a responsive
pleading is required, the petition may be amended “as a matter of course” 21 days after
such responsive pleading is filed. However, courts in this circuit “have not consistently
applied Rule 15(a)(1)(B) to habeas petitions.” Dupont v. Phillips, 2012 WL 2411858,
at *9 (E.D.N.Y. June 26, 2012); see also Defreitas v. Kirkpatrick,2017 WL 878445, at
*3 n.3 (N.D.N.Y. Mar. 6, 2017) (denying application). The Court need not decide
whether Rule 15(a)(1)(B) applies because a petitioner may amend at any time with
leave of the court, and leave should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2); Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001).
The State argues that amendment should not be allowed because the claims in
Card’s Amended Petition are time-barred. Although the Amended Petition was filed
after the expiration of the one-year limitations period applicable under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it relates back to

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the date of the original Petition because Card’s amended claims are virtually identical
to his original claims. They therefore “arise from the same core facts” and do not differ
“in both time and type” from his original claims. Mayle, 545 U.S. at 657 (applying
Fed. R. Civ. P. 15(c)). Leave to amend is granted.
Contrary to the State’s argument, it is irrelevant that Card relies on new
evidentiary support drawn from the documents submitted with the State’s Response or
that he presents new arguments in support of his claims. Relation back requires “the
existence of a common core of operative facts” shared by the original and new claims,
not citation to the same evidence in support of those facts. Mayle, 545 U.S. at 659.
Moreover, new arguments do not defeat relation back so long as any new legal theories
are “tied to the same operative facts as those initially alleged.” Id. at 658 n.5.
The State’s remaining arguments, including that the Amended Petition
constitutes an “abusive piecemeal litigation tactic[],” are without merit. The State may
respond to the Amended Petition within 14 days of entry of this Order.
SO ORDERED

/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 9, 2017

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