Knight v. Colvin

Filing 20

ORDER denying 17 Motion to Stay. For the reasons discussed in the attached Memorandum & Order, the Court denies Petitioner's request to hold his petition in abeyance to allow him to exhaust his ineffective assistance of counsel and prosecuto rial misconduct claims because Plaintiff fails to demonstrate good cause for his failure to exhaust. Within sixty (60) days of this Memorandum and Order, Petitioner may amend his habeas petition to remove his unexhausted claims, and proceed solely on his exhausted claims. Ordered by Judge Margo K. Brodie on 2/11/2019. (Borochoff-Porte, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------JERRY KNIGHT,
Petitioner,
v.

MEMORANDUM & ORDER
17-CV-2278 (MKB)

JOHN COLVIN, Superintendent,
Five Points Correctional Facility,
Respondent.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Jerry Knight, proceeding pro se and currently incarcerated at Five Points
Correctional Facility, brings the above-captioned petition for a writ of habeas corpus 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 grounds for relief arise
from a judgment of conviction after a jury trial in the Supreme Court of the State of New York,
Kings County, for assault in the first degree and criminal possession of a weapon in the second
degree. (Id. at 2.)
Currently before the Court is Petitioner’s renewed request to hold his petition in abeyance
to allow him to file a motion to vacate his conviction pursuant to section 440.10 of the New York
Criminal Procedure Law (“440 Motion”) in state court, and exhaust his unexhausted claims.
(Mot. for Pet. to be Held in Abeyance (“Stay Mot.”) 1, Docket Entry No. 17.) For the reasons
set forth below, the Court denies Petitioner’s motion to hold his petition in abeyance. Within
sixty (60) days of this Memorandum and Order, Petitioner may amend his habeas petition to
remove his unexhausted claims, and proceed solely on his exhausted claims.

I.

Background
On September 20, 2012, a jury convicted Petitioner of assault in the first degree and

criminal possession of a weapon in the second degree in connection with the shooting of
Cleveland White. (Pet. 2.) On October 15, 2012, a judge sentenced Petitioner to concurrent
prison terms of twenty-three years on the assault count and ten years on the weapon possession
count, with five years of post-release supervision. (Id.) Petitioner appealed his conviction to the
New York Appellate Division, Second Department, claiming that: (1) the conviction was not
supported by legally sufficient evidence and was against the weight of the evidence; (2) the trial
court improperly denied his request for new counsel after an inadequate inquiry; and (3) his
sentence was excessive. (Pet’r App. Div. Brief, annexed to Affirmation in Opp’n to Pet.
(“Resp’t Opp’n”) and Mem. in Opp’n (“Resp’t Opp’n Mem.”) as Ex. E, Docket Entry No. 7-10.)
On December 9, 2015, the Appellate Division affirmed the conviction, rejecting each of
Petitioner’s claims on the merits. People v. Knight, 19 N.Y.S.3d 901 (App. Div. 2015).
Petitioner sought leave to appeal from the New York Court of Appeals on the basis that the trial
court improperly denied his request for new counsel. (Pet’r Letter Briefs, annexed to Resp’t
Opp’n and Resp’t Opp’n Mem. as Exs. H and I, Docket Entry No. 7-10.) On April 4, 2016, the
New York Court of Appeals denied leave to appeal. People v. Knight, 27 N.Y.3d 1001 (2016).
On March 31, 2017, Petitioner filed a timely habeas petition with the Court, which
includes both exhausted and unexhausted claims. (Pet.) On June 14, 2017, the District
Attorney’s Office of King’s County filed its opposition to the petition. (Resp’t Opp’n; Resp’t
Opp’n Mem.) On April 26, 2018, after the Court granted multiple extensions, Petitioner filed his
reply to the District Attorney’s opposition. (Reply to Resp’t Response to Order to Show Cause
(“Pet’r Reply”), Docket Entry No. 18.)

2

a.

Petitioner’s initial stay request

In his petition, Petitioner requested that the Court hold his petition in abeyance, i.e., stay
his petition, to allow him to exhaust his unexhausted claims through a 440 Motion. (Pet. 1; see
also Pet’r Letter dated Apr. 25, 2017, Docket Entry No. 5; Pet’r Letter dated June 16, 2017,
Docket Entry No. 8.)1 The petition includes four claims: (1) deprivation of right to counsel; (2)
insufficient evidence to find proof of guilt beyond a reasonable doubt; (3) ineffective assistance
of trial counsel; and (4) prosecutorial misconduct at trial. (See Pet. 6–11.) Petitioner states that
he failed to exhaust his ineffective assistance of trial counsel and prosecutorial misconduct
claims in state court because the claims were “unpreserved,” as “counsel did not object,” and
“[t]herefore the grounds w[ere] never raised” or presented on appeal in Petitioner’s state court
proceedings. (Id. at 9, 11–12.) Respondent acknowledges that these claims are unexhausted.
(Resp’t Opp’n Mem. 1 (“The third and fourth claims are unexhausted because petitioner has not
asserted either claim in state court.”).)
In support of his ineffective assistance of trial counsel claim, Petitioner alleges that:
Counsel spoke to [his] girlfriend and made negative remarks about
[him], and even told [his] girlfriend not to come to [his] trial, and
how he felt [Petitioner] was guilty; counsel failed to investigate the
crime scene and other witnesses without any logical reason that
1

In addition to his petition, Petitioner subsequently filed two letters with the Court dated
April 25, 2017 and June 16, 2017, reiterating his request to hold his petition in abeyance, (see
Pet’r Letter dated Apr. 25, 2017, Docket Entry No. 5; Pet’r Letter dated June 16, 2017, Docket
Entry No. 8), and stating that he has filed requests pursuant to New York’s Freedom of
Information Law, N.Y. Pub. Off. Law § 84 et seq. (“FOIL”) to obtain legal documents in support
of his “legal issues,” (Pet’r Letter dated June 16, 2017). Petitioner attached to the June 16, 2017
letter copies of his FOIL requests for documents that he suggests are relevant to his 440 Motion.
(Id. at 3–5.) Petitioner’s FOIL requests seek “copies of any and all sanctions against [him] that
was [sic] imposed in May of 2012 (this includes any security changes and/or classification
changes or the like)”; the names of all court reporters who reported on criminal proceedings in
docket number 2012KN054632 and in another illegible docket number; and copies of all
transcripts pertaining to docket number 2012KN054632. (Id.)
3

would benefit the case; counsel failed to object to [Petitioner] being
charged with attempted murder 2nd and assault 1st when both charges
are identical and improperly charged.
(Pet. 9.) As to his prosecutorial misconduct claim, Petitioner alleges that the “District Attorney
used illegally obtained evidence as well as false information to pursue a conviction of [him]” and
the “District Attorney allowed the complaining victim to give false testimony about receiving a
deal in exchange for his testimony at trial against [him].” (Id. at 10.)
Respondent argued that a stay was not appropriate because “Petitioner ha[d] not offered a
sufficient explanation for why he was unable to exhaust his . . . claims in state court before he
filed his habeas corpus petition,” and although Petitioner asserted that his reason for failure to
exhaust was “because he had not yet obtained relevant documents to support his unexhausted
claims,” he nevertheless failed to “identify the documents he needs to acquire, . . . describe any
efforts he has made to acquire those documents, [or] . . . explain why he could not have acquired
those document sooner.” (Resp’t Opp’n Mem. 24.)
By Memorandum and Order dated February 12, 2018, the Court denied Petitioner’s
request for abeyance without prejudice. (Mem. and Order dated Feb. 12, 2018, Docket Entry
No. 12.) The Court determined that Petitioner had not shown good cause for failure “to exhaust
his ineffective assistance of trial counsel and prosecutorial misconduct claims.” (Id. at 4.) The
Court reasoned that:
Petitioner does not explain how or why the fact that his claims were
“unpreserved” prevented him from exhausting those claims. Nor
does Petitioner allege that any of his unexhausted claims concern
matters that were unknown to him during his criminal proceedings.
In his June 16, 2017 letter to the Court, Petitioner suggests that he is
in the process of gathering documents in support of his claims, but
does not explain how those documents support his claims, why he
did not previously gather these documents, or why he filed his
petition without all of the relevant support for his claims.
(Id. (internal citations omitted).)
4

b.

Petitioner’s renewed motion to hold the petition in abeyance

On April 13, 2018, Petitioner submitted a new motion for his petition to be held in
abeyance so that he can exhaust his two unexhausted claims — ineffective assistance of trial
counsel and prosecutorial misconduct at trial — in state court pursuant to a 440 Motion.2 (Stay
Mot.) On October 16, 2018, Respondent opposed Petitioner’s motion. (Resp. in Opp’n re Mot.
to Stay (“Resp’t Stay Opp’n”), Docket Entry No. 19.)
In support of his renewed motion, Petitioner notes that he “was not responsible for the
grounds raised in his direct appeal, and had no say . . . about what grounds were going to be
raised.” (Stay Mot. 2.) Petitioner further states that he “received legal advice and assistance
from the law clerks at his facility” in drafting his petition, and “was told that all he [had] to do
was put ‘counsel did not object and the claims were unpreserved’ where it asks why the issues
were not raised in direct appeal.” (Id.)
Petitioner alleges that although his appellate counsel “disregarded his wishes” to submit a
440 Motion prior to his direct appeal, “Petitioner continued to pursue a [440 Motion] but [has]
yet to obtain all of the documentary evidence to support his motion.” (Id.) Further, Petitioner
claims that he has been “able to obtain most of the documentary evidence” needed to pursue a
440 Motion on the unexhausted claims, “and is currently in the process of getting an affidavit
from his girlfriend and ‘Giglio material’ (evidence that proves the complaining victim received a
deal in exchange for his testimony), which would conclude his search for documentary
evidence.” (Id.)

2

As Petitioner is proceeding pro se, the Court reads his motion “liberally” and interprets
it “to raise the strongest arguments” that it may suggest. See Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010).
5

Respondent argues that the fact that Petitioner’s “appellate counsel disregarded
[P]etitioner’s request to file a [440 Motion]” does not constitute good cause for failure to exhaust
his claims and “does not explain why [P]etitioner could not have filed such a motion pro se
either concurrent with his direct appeal or after his direct appeal was decided.” (Resp’t Stay
Opp’n 1.) In addition, Respondent argues that “[P]etitioner has not shown that he would be able
to file his motion in state court in a timely manner should this Court grant his application for a
stay.” (Id. at 1−2.) Respondent does not respond directly to Petitioner’s assertions regarding the
evidence he is “in the process of getting.”3 (Stay Mot. 2.)
II. Discussion
a.

Standard of review

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).
b.

Petitioner has not shown good cause

Petitioner fails to show good cause under Rhines. As several district courts in the Second
Circuit have noted, “[t]he Supreme Court and the Second Circuit have yet to define what
constitutes ‘good cause’ under Rhines.” Henry v. Lee, No. 12-CV-5483, 2013 WL 1909415, at

3

Since Petitioner filed his renewed request for a stay on April 13, 2018, the Court has
not received an update from Petitioner on the disposition of his anticipated 440 Motion, or the
status of the evidence that Petitioner sought at the time of filing his renewed request.
6

*6 (E.D.N.Y. May 8, 2013); see also Cordero v. Miller, No. 15-CV-0383, 2018 WL 3342573, at
*2 (W.D.N.Y. July 9, 2018), reconsideration denied, No. 15-CV-0383, 2018 WL 4846272
(W.D.N.Y. Oct. 5, 2018).
District courts in this Circuit have primarily followed two different approaches in
determining whether the Rhines “good cause” requirement has been met. Some courts find “that
a petitioner’s showing of ‘reasonable confusion’ constitute[s] good cause for failure to exhaust
his claims before filing in federal court.”4 Whitley v. Ercole, 509 F. Supp. 2d 410, 417–18
(S.D.N.Y. 2007) (collecting cases) (noting that “[t]his . . . manner of defining ‘good cause’
would allow a petitioner to show the reasons, subjectively, for the delay in filing his petition”).
Other courts require a more demanding showing — that some external factor give rise to
the petitioner’s failure to exhaust the claims. See, e.g., Ramdeo v. Phillips, No. 04-CV-1157,
2006 WL 297462, at *5 (E.D.N.Y. Feb. 8, 2006) (collecting cases and noting that such “courts
have reasoned that ‘good cause,’ like ‘cause’ in the procedural default context, must arise from
an objective factor external to the petitioner which cannot fairly be attributed to him or her”
(internal quotation marks and citations omitted)); see also Whitley, 509 F. Supp. 2d at 417
(noting that in that case and under this more demanding approach, “a ‘good cause’ requirement

4

This interpretation arises from the Supreme Court’s dicta in Pace v. DiGuglielmo, 544
U.S. 408 (2005), a case in which the Court opined that “[a] petitioner’s reasonable confusion
about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file
in federal court.” Pace, 544 U.S. at 416; see also Davis v. Graham, No. 16-CV-0275, 2018 WL
3996424, at *2 (W.D.N.Y. Aug. 21, 2018) (“Some district courts interpret the Supreme Court
dictum in Pace v. DiGuglielmo, 544 U.S. 408 (2005), to suggest that a petitioner’s reasonable
confusion about exhaustion and state filing deadlines constitutes ‘good cause.’” (citation
omitted)); Young v. Great Meadow Corr. Facility Superintendent, No. 16-CV-1420, 2017 WL
480608, at *5–6 (S.D.N.Y. Jan. 10, 2017) (noting that “[s]everal district courts have
interpreted Pace to indicate that ‘good cause’ for an order of stay and abeyance need not be
based on any factor external to petitioner but rather is ‘a broader, more forgiving
concept.’” (quoting McCrae v. Artus, No. 10-CV-2988, 2012 WL 3800840, at *9 (E.D.N.Y.
Sept. 2, 2012)).
7

would look for some reason, external to Petitioner, to explain Petitioner’s delay in raising the
issue of ineffective representation, from April 18, 2002, when [the] conviction was entered, to
November 28, 2006,” when the 440 Motion was filed).
For the reasons set forth below, Petitioner has not shown good cause under either
approach.
i.

Petitioner has not expressed reasonable confusion

Petitioner has not expressed confusion, let alone reasonable confusion, regarding the
delay in his state filing or the existence of his unexhausted claims. Instead, Petitioner specified
in his petition that his claims were not exhausted in state court and notified the Court that he
intended to file a 440 Motion, (see Pet. 1), and more recently again notified the Court that he
intends to file a 440 Motion once he receives certain evidence, (Stay Mot. 3). Thus, prior to
filing the petition, Petitioner knew that he needed to file a 440 Motion as to his unexhausted
claims, and therefore cannot show reasonable confusion. See Davis v. Graham, 2018 WL
3996424, at *3 (finding no good cause, in part because it was not “apparent that Petitioner ‘was
confused as to whether his claims were properly exhausted in state court.’” (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)); Young v. Great Meadow Corr. Facility Superintendent,
No. 16-CV-1420, 2017 WL 480608, at *6 (S.D.N.Y. Jan. 10, 2017) (noting that petitioner had
not demonstrated confusion where “[t]o the contrary: petitioner identified the need to file a [440
motion] in his original petition”); Holguin v. Lee, No. 13-CV-1492, 2013 WL 3344070, at *3
(S.D.N.Y. July 3, 2013) (finding no reasonable confusion where it was “clear” that petitioner
“was not reasonably confused as to whether his claims were properly exhausted in state court.”
(emphasis in original)); but cf. Castellanos v. Kirkpatrick, No. 10-CV-5075, 2013 WL 3777126,
at *2 (E.D.N.Y. July 16, 2013) (noting that district courts have found good cause shown “where

8

the wording of a state court decision caused a petitioner reasonable confusion about his claims
and their viability . . . , and where a pro se petitioner was unaware of the procedure for raising an
ineffective assistance of counsel claim in the state.” (internal quotation marks and citations
omitted)).
ii.

Petitioner has not sufficiently shown that any objective factor caused
his failure to exhaust claims

Petitioner has not sufficiently shown any objective factor that is responsible for his
failure to exhaust his claims in state court. Districts courts “cannot grant petitioner a stay of
his habeas petition for the sole reason that petitioner failed to bring his claim earlier.” Holguin,
2013 WL 3344070, at *2 (quoting Spells v. Lee, No. 11-CV-1680, 2012 WL 3027865, at *6
(E.D.N.Y. July 23, 2012)); see also Scott v. Phillips, 05-CV-0142, 2007 WL 2746905, at *7
(E.D.N.Y. Sept. 19, 2007) (noting that if the court granted a stay on the basis of petitioner simply
not bringing “the claim earlier, despite admittedly being previously aware of the facts supporting
the claim, it would be defeating [the Anti-Terrorism and Effective Death Penalty Act of 1996’s
(AEDPA)] twin purposes of encouraging finality and increasing the incentives for petitioners to
exhaust all claims prior to filing habeas petition in federal court.”).
In support of his stay request, Petitioner appears to assert three potential external factors
that have given rise to his failure to exhaust his ineffective assistance of trial counsel and
prosecutorial misconduct claims in state court: (1) that he was not responsible for the grounds
raised in his appeal; (2) that appellate counsel “disregarded his wishes” to submit an earlier 440
Motion; and (3) that Petitioner has continued to pursue a 440 Motion but has yet to obtain all of
the documentary evidence he needs to file it. (Stay Mot. 2.)
Based on the facts of this case, these factors are insufficient to constitute external factors
not attributable to Petitioner.
9

1.

Petitioner’s lack of legal knowledge and appellate counsel’s
actions are insufficient external factors

Petitioner’s first two assertions — that he was not responsible for deciding the grounds to
raise in his appeal, and that appellate counsel did not assist him in submitting a 440 Motion —
are insufficient to establish good cause. Simpson v. Yelich, No. 18-CV-0417, 2018 WL 4153928,
at *4 (N.D.N.Y. Aug. 30, 2018) (“Petitioner’s pro se status and inexperience with the law are
insufficient to establish good cause.”); see also Thomas v. Artus, No. 16-CV-6132, 2017 WL
1046333, at *1 (W.D.N.Y. Mar. 20, 2017) (finding failure to show good cause where a
correctional facility law clerk had alerted the petitioner to a new claim, because “ignorance of the
law [was] the only reason [p]etitioner ha[d] offered for his failure to timely exhaust his new
claim,” and petitioner could not “contend that he was previously ignorant of the new claims’
factual predicates”); Craft v. Kirkpatrick, No. 10-CV-6049, 2011 WL 2622402, at *10
(W.D.N.Y. July 5, 2011) (“The Court has found no cases supporting the proposition that a
petitioner’s ignorance of the law constitutes ‘good cause’ for the failure to exhaust.”). In
addition, although Petitioner argues that he was not responsible for the grounds raised in his
appeal, it is unclear that Petitioner’s unexhausted claims could have been pursued on direct
appeal, as Petitioner himself suggests that the claims may be based on information outside of the
record. (See, e.g., Stay Mot. 2 (noting that Petitioner is obtaining documentary evidence to
support his unexhausted claims, has obtained some of it, and is still seeking an affidavit from his
girlfriend and “Giglio material.”).)
Further, Petitioner’s assertion that he informed his appellate counsel of his desire to file a
440 Motion indicates that Petitioner knew of the factual predicates for such a Motion at the time
of his appeal, and, as Respondent argues, “that [P]etitioner’s appellate counsel disregarded
[P]etitioner’s request to file a [440 Motion] does not explain why [P]etitioner could not have
10

filed such a [M]otion pro se either concurrent with his direct appeal or after his direct appeal was
decided.” (Resp’t Stay Opp’n 1); see also Young, 2017 WL 480608, at *6 (noting that to the
extent petitioner’s ineffective assistance of trial counsel claim arose “from matters outside of the
trial court record,” petitioner did not offer an explanation for failure to file his 440 [M]otion
while his direct appeal was pending); Newman v. Lempke, No. 13-CV-0531, 2014 WL 4923584,
at *3 (W.D.N.Y. Sept. 30, 2014) (finding no good cause shown where petitioner had been aware
“that neither his appellate counsel nor another attorney retained by petitioner would be
presenting [his ineffective assistance of counsel] claim to the state courts in a [440 Motion],” and
still had not presented his claims earlier).
2.

Petitioner has not sufficiently shown that he is waiting for
evidence due to an external factor

With respect to Petitioner’s last assertion, that he has continued to pursue a 440 Motion
but has yet to obtain all of the documentary evidence he needs to file it, Petitioner has not
sufficiently explained why he is still waiting on such evidence.5 As of Petitioner’s last update to
the Court, on April 13, 2018, he was still “in the process of getting an affidavit from his
girlfriend and ‘Giglio material.’” (Stay Mot. 2.)

5

In addition, although Petitioner claims that he has been “able to obtain most of the
documentary evidence” needed to pursue a 440 Motion, (Stay Mot. 2), he does not specify the
nature of the evidence, see Boykins v. Superintendent Auburn Corr. Facility, No. 12-CV-548S,
2015 WL 3604030, at *3−4 (W.D.N.Y. June 5, 2015) (finding that petitioner failed to show good
cause in part because he “provided no further explanation” of the “new evidence” the petitioner
said he was in possession of, and that thus the existence of new evidence was not sufficient to
explain why petitioner had not exhausted the claims earlier).
11

A.

Petitioner has not shown good cause for why he is
waiting on evidence to exhaust his ineffective assistance
of trial counsel claim

The Court presumes that the affidavit from Petitioner’s girlfriend is to support his
ineffective assistance of trial counsel claim, given that the asserted factual basis for that claim is
that “[c]ounsel spoke to [Petitioner’s] girlfriend and made negative remarks about [Petitioner],
and even told [Petitioner’s] girlfriend not to come to [Petitioner’s] trial, and how he felt
[Petitioner] was guilty.” (Pet. 9.) Petitioner also claims that his trial counsel was ineffective
because “counsel failed to investigate the crime scene and other witnesses . . . [and] failed to
object to [Petitioner] being charged with attempted murder 2nd and assault 1st when both charges
are identical and improperly charged.” (Id.)
Even if the Court were to assume the truth of these statements, Petitioner has known this
information since his trial. Petitioner has not explained why he has been unable to obtain an
affidavit from his girlfriend in the more than two-and-a-half years since the New York Court of
Appeals denied Petitioner leave to appeal, and the more than one-and-a-half years since the filing
of his habeas petition. See, e.g., Young, 2017 WL 480608, at *2 (finding no good cause shown
for failure to exhaust an ineffective assistance of trial counsel claim even when it hinged “on
materials outside the record” and where the petitioner argued that the claim “required
considerable investigation,” in part because the petitioner failed to provide or describe the “offthe-record” documents); Porter v. Keyser, No. 15-CV-0816, 2016 WL 1417847, at *2 (S.D.N.Y.
Apr. 8, 2016) (finding no good cause shown for failure to exhaust an ineffective assistance of
appellate counsel claim, where petitioner provided “no explanation at all for his decision to wait
. . . nearly two full years after the resolution of his direct appeal” to raise the claim in state
court); Spurgeon v. Lee, No. 11-CV-0600, 2011 WL 1303315, at *2 (E.D.N.Y. Mar. 31, 2011)

12

(finding, where a 440 Motion had yet to be filed and petitioner was in the process of drafting a
letter to his trial counsel, no good cause shown for failure to exhaust an ineffective assistance of
trial counsel claim because the facts underlying petitioner’s claim had “been known to petitioner
since his trial,” and petitioner had “not explain[ed] why he did not raise th[e] claim to a state
court earlier, or why he did not request such an affirmation from his trial counsel at any point
before he filed his petition”).
B.

Petitioner has not shown good cause for why he is
waiting on evidence to exhaust his prosecutorial
misconduct claim

Petitioner describes the “Giglio material” that he is seeking as “evidence that proves the
complaining victim received a deal in exchange for his testimony.” (Stay Mot. 2.) Thus, the
Court presumes that the “Giglio material” Petitioner seeks is to support his prosecutorial
misconduct at trial claim, given that Petitioner’s stated support for that claim includes that “[t]he
District Attorney used illegally obtained evidence as well as false information,” and that the
“District Attorney allowed the complaining victim to give false testimony about receiving a deal
in exchange for his testimony at trial.” (Pet. 10.)
Plaintiff has not sufficiently shown that there is an external factor that has prevented him
from obtaining the “Giglio material” he seeks and exhausting his prosecutorial misconduct
claim. First, the facts underlying the claim have been known to Petitioner since the time of trial.
(Stay Mot. 2 (admitting that Petitioner had made previous attempts to obtain such “Giglio
material” during the course of Petitioner’s state court proceedings)); see also Spurgeon, 2011
WL 1303315, at *3 (finding that petitioner had not shown good cause where petitioner had yet to
file a 440 Motion and “the facts underlying the alleged prosecutorial misconduct were known to
the petitioner at the time of trial”).

13

Second, Petitioner does not inform the Court whether the “Giglio material” he refers to is
information that was disclosed during the course of his state court proceedings, newly discovered
information that had been suppressed, or new information that he is seeking. During the state
court proceedings, the trial judge confirmed that the District Attorney had submitted its Brady
material.6 (Jury Selection Tr. 6:13−6:16, annexed to Resp’t Opp’n and Resp’t Opp’n Mem. as
Ex. B, Docket Entry No. 7-2 (“THE COURT: You already provided me with a witness list, all
the Rosario, Brady and Consolazio have been turned over? MS. CHAVIS: Yes, Your Honor.”).)
Petitioner does not specify what the “Giglio evidence” consists of, nor why he does not have it,
and thus it is unclear if such “Giglio material” even exists. Petitioner argues that the prosecutor
“allowed the complaining victim to give false testimony about receiving a deal in exchange for
his testimony at trial,” (Pet. 10), but it appears that the complaining victim did not receive any
sort of deal at trial. (See, e.g., Resp’t Opp’n Mem. (citing White’s testimony and stating that
“White was not promised anything in exchange for his testimony.”).)7
Third, Petitioner alleges that he “made a [FOIL] request [three] years ago” during the
course of his state court proceedings for “Giglio material,” and “was denied because his direct

6

The Supreme Court’s decision in Giglio v. United States, 405 U.S. 150 (1972)
expanded upon its decision in Brady v. Maryland, 373 U.S. 83 (1963), which held that “[t]he
prosecution has a constitutional duty to disclose evidence favorable to an accused when such
evidence is material to guilt or punishment.” United States v. Coppa, 267 F.3d 132, 135 (2d Cir.
2001) (citing Brady, 373 U.S. at 87).
7

The Court has previously held, and reemphasizes, that “[t]he nature of a Brady claim,
predicated on failure to disclose material information, makes it particularly suitable for a finding
of good cause.” Castellanos, 2013 WL 3777126, at *2 (citation omitted). Here, however,
Petitioner has not provided the Court with enough information to determine whether the “Giglio
material” he seeks even exists. Cf. Haywood v. Griffin, No. 16-CV-3870, 2017 WL 961739, at
*2 (S.D.N.Y. Mar. 13, 2017) (finding good cause shown for failure to exhaust Brady claim due
to the existence of newly discovered evidence — the psychiatric records of a prosecution
witness).
14

appeal was still pending,” (Stay Mot. 2), but this does not, in and of itself, amount to an external
factor sufficient to show good cause, see Williams v. Bradt, No. 10-CV-3910, 2011 WL 531732,
at *2 (E.D.N.Y. Feb. 8, 2011) (finding that petitioner had failed to show good cause because
“[t]he alleged failure to receive certain unidentified documents that are in all likelihood
documents that are part of the record of the state court proceedings in this case, does not
constitute good cause” and “the state court documents were accessible to Petitioner prior to
bringing [the] habeas petition”). Petitioner has not identified any other attempt to obtain such
materials since that time, and his FOIL requests do not appear to request any information that
could be deemed “Giglio material.” See Cordero, 2018 WL 3342573, at *4 (finding that
petitioner had not shown good cause or a sufficient factor external to him where petitioner stated
that he was waiting for records from the County Court, but “ha[d] not explained why, apart from
the fact that he is pro se and unschooled in the law, he was unable to begin the process of
obtaining the . . . records sooner”). Instead, Petitioner appears to ask the Court to “order the
District Attorney to turn over the ‘Giglio material.’” (Stay Mot. 3.) However, “a
habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a
matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Moreover, because
Petitioner has failed to show good cause, the Court does not consider this request.
For these reasons, based on the facts of this case, Petitioner has not sufficiently shown
that an external factor as opposed to his own actions have caused the failure to collect the
evidence he still seeks, and for failure to exhaust his claims. See Ramdeo, 2006 WL 297462, at
*5 (noting that under the external factor good cause standard, such good cause “must arise from
an objective factor external to the petitioner which cannot fairly be attributed to him” (internal
quotation marks and citations omitted)).

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III. Conclusion
For the foregoing reasons, the Court denies Petitioner’s renewed motion to stay the
petition. The Court grants Petitioner sixty (60) days from the date of this Memorandum and
Order to amend his petition by removing the unexhausted claims, and to proceed on his
exhausted claims. Rhines, 544 U.S. at 278 (“[I]f a petitioner presents a district court with a
mixed petition and the court determines that stay and abeyance is inappropriate, the court 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.” (citation and internal quotation marks omitted)). If the Court does not receive an
amended petition, it will presume that Petitioner prefers to have the Court proceed on his
exhausted claims alone, rather than dismiss his entire petition. See Young, 2017 WL 480608, at
*6 (“[T]he Court will presume, unless petitioner expressly indicates otherwise in his reply brief
or other filing, that he would rather withdraw his unexhausted claim than face the dismissal of
his entire petition.”).
Dated: February 11, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

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