Burroughs v. Griffin
Filing
13
DECISION and ORDER: ORDERED that petitioner's motion to amend his petition, Dkt. No. 11 , is GRANTED. The Clerk shall docket petitioner's Proposed Amended Petition, Dkt. No. 11-1, as an Amended Petition; and it is further ORDERED that p etitioner's motion to stay, Dkt. No. 12 , is DENIED; and it is further ORDERED that the respondent shall file and serve an answer to the amended petition, and provide the court with the records relevant to the amended petition, within sixty (60) days of the date of this Decision and Order; and it is further ORDERED that upon the filing of respondent's answer, the Clerk shall forward the entire file in this matter to the court for further review. Signed by US Magistrate Judge Andrew T. Baxter on 7/3014. (ptm) (Copy served on petitioner by regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HAROLD BURROUGHS, JR.,
Petitioner,
v.
9:13-CV-1505
(TJM/ATB)
THOMAS GRIFFIN,
Respondent.
APPEARANCES:
HAROLD BURROUGHS, JR.
08-A-4423
Petitioner pro se
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Respondent
120 Broadway
New York, NY 10271
ALYSON J. GILL, AAG
ANDREW T. BAXTER
United States Magistrate Judge
DECISION and ORDER
Petitioner Harold Burroughs, Jr. moved to amend his petition for a writ of habeas
corpus, and to stay his petition pending a decision from the New York Court of Appeals on
his application for leave to appeal the denial of his state court application for a writ of error
coram nobis. Dkt. No. 11, Motion to Amend; Dkt. No. 11-1, Proposed Amended Petition; Dkt.
No. 12, Motion to Stay. Respondent has not opposed the motions. For the reasons that
follow, petitioner's motion to amend is granted, and his motion to stay is denied.
In his motion to amend, petitioner explains that in June 2013, he presented the claims
alleged in proposed grounds two, three and four of his proposed amended petition (alleging a
Rosario/Brady violation and ineffective assistance of trial counsel) in a motion to vacate his
conviction. Dkt. No. 11, Motion to Amend at 1-2. He states that the motion was denied on
August 5, 2013, and that the Appellate Division denied leave to appeal on October 5, 2013.
Id. Petitioner states that he did not include proposed grounds two, three and four in his
original petition because the judge who denied his motion to vacate stated those claims
"should have been raised" in his direct appeal. Id. at 2. Petitioner further states that he did
not think he had time to file a state writ of error coram nobis to exhaust his appellate counsel
ineffectiveness claim, raised in ground one of the proposed amended petition, before
AEDPA's one-year statute of limitations expired. Id. at 2. Finally, petitioner states that
grounds five, six and seven of his proposed amended petition were pleaded in his original
petition. Id. According to petitioner, his amended petition is timely because his claims are
based on "newly discovered evidence."1
Based upon petitioner's submissions, his motion to amend is granted. Petitioner's
proposed amended petition will be docketed as his amended petition.
Petitioner's motion to stay the amended petition is, however, denied. As the court
noted in its April 30, 2014 Decision and Order, a district court may dismiss without prejudice
a mixed petition containing both exhausted and unexhausted claims, or retain jurisdiction
over the petition and stay further proceedings pending exhaustion of state remedies. Rhines
v. Weber, 544 U.S. 269, 277 (2005). Stays should be granted only in limited circumstances
1
On December 12, 2013, petitioner was directed to file an affirmation in which he explained why the statute
of limitations should not bar his original petition. Dkt. No. 2, Decision and Order. Petitioner filed the required
affirmation, dated December 26, 2013, in which he asserted that his claims are based upon newly discovered
evidence that he did not obtain until September 5, 2012. Dkt. No. 3, Affirmation. On January 3, 2014, the court
declined to dismiss the petition as untimely and directed a response. Dkt. No. 4, Decision and Order, McAvoy, J.
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and only if the petitioner can show (1) "good cause" for failing to "exhaust his claims first in
state court" and (2) that his unexhausted claims are not "plainly meritless." Rhines, 544 U.S.
at 277-78.
Petitioner has failed to allege or establish good cause for his failure to exhaust his
appellate counsel claim prior to bringing his federal habeas petition. His apparent argument
that he is proceeding pro se is insufficient to establish cause. "[I]nadvertent failure" to
exhaust claims based upon a pro se petitioner's ignorance of the law does not justify
excusing petitioner’s failure to comply with the rules governing habeas petitions. McCrae v.
Artus, No. 1:10-CV-2988, 2012 WL 3800840 at *10 (E.D.N.Y. Sept. 2, 2012); see Ramdeo v.
Phillips, No. 1:04-CV-1989469, 2006 WL 297462 at *7 (E.D.N.Y. Feb. 8, 2006) (no good
cause shown where the petitioner admitted the “failure to exhaust is attributable to his own
ignorance of the law, and was therefore inadvertent and entirely in good faith.”). Accordingly,
petitioner's motion to stay is denied.2
WHEREFORE, it is
ORDERED that petitioner's motion to amend his petition, Dkt. No. 11, is GRANTED.
The Clerk shall docket petitioner's Proposed Amended Petition, Dkt. No. 11-1, as an
Amended Petition; and it is further
ORDERED that petitioner's motion to stay, Dkt. No. 12, is DENIED; and it is further
ORDERED that the respondent shall file and serve an answer to the amended
petition, and provide the court with the records relevant to the amended petition,3 within sixty
2
This order does not preclude petitioner from pursuing review of his claims in the state courts.
3
The records must be arranged in chronological order, sequentially numbered, and conform with the
requirements of Local Rule 72.4. Respondent is reminded that, under Local Rule 7.1 (a)(1), if memoranda contain
citations to decisions exclusively reported on computerized databases, e.g. Westlaw, Lexis, copies of those decisions
shall be mailed to a pro se petitioner, but no longer need to be filed with the court. N.D.N.Y. L.R. 7.1 (a)(1).
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(60) days of the date of this Decision and Order; and it is further
ORDERED that upon the filing of respondent's answer, the Clerk shall forward the
entire file in this matter to the court for further review; and it is further
ORDERED that the parties shall file all pleadings, motions or other documents relating
to this action with the Clerk of the United States District Court, Northern District of New York,
James Hanley U.S. Courthouse & Federal Building, 7th Floor, 100 South Clinton Street,
Syracuse, New York 13261-7367. The parties must accompany any document filed with the
court with a certificate setting forth the date on which they mailed a true and correct copy of
the same to all opposing parties or their counsel. The court will strike any filing that does not
include a proper certificate of service. Petitioner must comply with any requests by the
Clerk's Office for any documents that are necessary to maintain this action. Petitioner must
also promptly notify the Clerk's Office and all parties or their counsel of any change in his
address; his failure to do so will result in the dismissal of this action.
All parties must comply with Rule 7.1 of the Northern District of New York when filing
motions, which are to be made returnable before the undersigned on any business day with
proper allowance for notice as the Rules require. All motions will be decided on the papers
without oral argument unless otherwise ordered.
Dated:July 30, 2014
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