DeFreitas v. Kirkpatrick

Filing 30

DECISION AND ORDER: ORDERED that petitioner's motions, Dkt. No. 26 , are DENIED; and it is ORDERED, that briefing in this case is closed and the petition is under review. A decision will issue in due course. No further submissions will be accepted for filing without permission from the Court. Signed by US Magistrate Judge Andrew T. Baxter on 3/6/17. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DESMOND DEFREITAS,
Petitioner,
v.

9:16-CV-0638
(LEK/ATB)

MICHAEL KIRKPATRICK,
Respondent.

APPEARANCES:

OF COUNSEL:

DESMOND DEFREITAS
10-B-0401
Petitioner, pro se
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
120 Broadway
New York, New York 10271

DENNIS A. RAMBAUD, AAG

ANDREW T. BAXTER
United States Magistrate Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner Desmond DeFreitas filed a second motion to stay his petition for a writ of

habeas corpus, along with several exhibits. Dkt. No. 26, Letter Motion; Dkt. Nos. 26-1
through 26-6, Exhibits. He also asks the court to appoint counsel. See Dkt. No. 26 at 2. 1
Respondent opposes the motion to stay, and any motion to amend that is "implicitly

1

The cited page numbers refer to those generated by the court's electronic filing system ("ECF").

contain[ed]" in petitioner's motion papers. Dkt. No. 29, Opposition Letter. For the reasons
that follow, petitioner's motions are denied.
II.

MOTION FOR COUNSEL
Petitioner states that counsel is necessary to assist him because he is "housed in the

APPU unit" at the Clinton Correctional Facility, and he is being denied access to the courts
because "none of the law clerks" at the prison are "qualified or knowledgable [sic] enough" to
assist him. Dkt. No. 26 at 2. As the court noted in its June 17, 2016 Decision and Order,
there is no constitutional right to representation by counsel in habeas corpus proceedings.
Dkt. No. 6 at 2 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). A court may
appoint counsel for "any financially eligible person" where "the interests of justice so
require[.]" 18 U.S.C. §3006A(a)(2)(B). In determining whether to appoint counsel, a habeas
court should "consider the petitioner's likelihood of success on the merits of his petition, the
complexity of legal issues raised by such application and the petitioner's ability to investigate
and present his case to the federal habeas court." Soto v. Walker, No. 9:00-CV-0197
(TJM/DEP), 2005 WL 2260340 at *4 (N.D.N.Y. Sept. 15, 2005); see Hodge v. Police Officers,
802 F.2d 58, 60-61 (2d Cir. 1986).
Petitioner has not been granted in formal pauperis status, and therefore is ineligible
for appointment of counsel. But even assuming petitioner is a "financially eligible person"
under 18 U.S.C. §3006A (a)(2)(B), there is no "special reason" why appointing counsel to
assist petitioner is warranted. Hodge, 802 F.2d at 62. Petitioner has not dem onstrated that
his claims are overly complex, or that "appointment of counsel would be more likely to lead to
a just determination." Brito v. Burge, No. 1:04-CV-1815, 2005 W L 1837954 at *2 (S.D.N.Y.

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Mar. 8, 2004) (citing Terminate Control Corp v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994)).
His request for appointment of counsel is denied.
III.

THE MOTION TO STAY
Turning to the motion to stay, petitioner claims that a witness statement and a police

report were altered to assist the prosecutor's case. First, he claims that it is "his recollection"
that at a bail hearing held on or about September 28, 2008, the prosecutor read into the
record a statement by S.R., a witness. Dkt. No. 26 at 1-2. According to petitioner, S.R.
originally claimed that petitioner and S.R.’s sister, A.R., "entered the residence at 306
Kingsley Rd," S.R. "heard someone within the house, using a hammer," and petitioner and
A.R. exited the house with "kitchen cabinets." Id. Petitioner claims that although the
prosecutor later disclosed to him a statement made by S.R., there is "absolutely no mention
of somebody using a hammer inside the residence at 306 Kingsley Rd." Id. at 2 (emphasis in
original). Petitioner "believe[s] that it would be fair to speculate that the prosecutions' team,
had S.R. sign a 'new and improved' (for their purpose) statement, omitting the portion
wherein she claimed to have heard the use of a hammer." Id. (citing Dkt. No. 24-4 at pages
labeled R-199 to R-205). Petitioner attached af fidavits from Concetta DeFreitas, Francesca
Ciro, and Salvatore Curto attesting that they, too, remember the prosecutor reading a
statement by S.R. at the bail hearing that referenced the use of a hammer. See Dkt. No. 264 at R-206 (Affidavit of Concetta DeFreitas, dated March 2, 2015); Dkt. No. 26-4 at R-207
(Affidavit of Francesca Ciro, dated June 17, 2015); Dkt. No. 26-4 at R-208 (Af fidavit of
Salvatore Curto, dated Dec. 23, 2016).
Petitioner next argues that a police report was improperly altered. Dkt. No. 26-4 at 2.

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The report in question was prepared by New York State Police Investigator George Bird.
Dkt. No. 26-1 at ¶¶111-20 (citing Dkt. No. 26-3 at R-130-36). Petitioner states that the
second page of the report, originally dated January 23, 2009, was later replaced by a page
with different content that is dated February 2, 2009. See Dkt. No. 26-1 at ¶115; Dkt. No. 263 at R-131-32. Petitioner appears to argue Investigator Bird "purposefully altered" the report
to aid the prosecutor's case by eliminating any reference to an incident that occurred on
"Easter Sunday 2008." Dkt. No. 26-1 at ¶¶118, 119. He also states that the f ifth page of the
report was altered because it bears a different date than pages one through four and six. Id.
at ¶120. Petitioner claims, "I believe that Investigator Bird removed all mention of the 'Easter
Sunday 2008' incident to directly aid the prosecution's case," and that Investigator Bird's
"actions deprived [petitioner’s] defense attorney the opportunity to use this information to
prove that these cases were false" and to challenge Investigator Bird's credibility. Id. at
¶119.
Petitioner states that he intends to file a motion to vacate his conviction in state court
based on these allegations, but has not done so because he is " conducting an ongoing
investigation, along with collecting evidence." Dkt. No. 26-1 at 3. He also complains that the
Schoharie County District Attorney's Office failed to comply with a court order requiring
disclosure of certain documents petitioner requested pursuant to the Freedom of Information
Law ("FOIL"). Id. at 4.2
IV.

DISCUSSION
When a district court is presented with a "mixed petition" containing both exhausted

2

See Dkt. No. 26-6, Judgment.

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and unexhausted claims, it may dismiss the petition without prejudice or retain jurisdiction
over the petition and stay further proceedings pending exhaustion of state remedies. Rhines
v. Weber, 544 U.S. 269, 275-76 (2005). This "stay and abeyance" procedure should be
"available only in limited circumstances" where 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." Id. at 275, 277.
Petitioner does not clearly identify what constitutional claims he intends to raise in
state court based upon the alleged altered reports identified in his motion. Dkt. No. 26.
There are, however, no claims in his pending petition related to either report. See Dkt. No. 1.
Therefore, the petition does not appear to be " mixed" with respect to any claims related to
the alleged altered reports, and a stay to permit petitioner to exhaust these new claims is
inappropriate. Rhines, 544 U.S. at 277; Mills v. Girdich, No. 1:03-CV-0341, 2008 W L
4371362 at *1 (W.D.N.Y. Sept. 17, 2008); Hall v. Conway, No. 6:04-CV-6011, 2008 W L
2559371 at *1 (W.D.N.Y. Jun. 23, 2008).
Additionally, petitioner has not demonstrated good cause for failing to raise claims
related to the alleged altered reports in state court sooner. Rhines, 544 U.S. at 277-78. He
has not yet filed a motion to vacate his conviction in state court and, therefore, the
exhaustion process has not yet begun. Dkt. No. 26 at 3. Petitioner claims the reason for the
delay is that he is still investigating his claims, but the claims appear be based on information
that is not new. For example, the bail hearing, at which petitioner and those who completed
affidavits were present, took place in 2008. Petitioner had two of the three supporting
affidavits attached to his motion by June 2015, well before he filed his federal habeas

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petition. See Dkt. No. 26-4 at R 206-207. Petitioner similarly fails to explain why he did not
challenge Investigator Bird's police report sooner, making only a cursory reference to that
claim in his motion. See Dkt. No. 26 at 2. Petitioner's apparent arguments that he knew of
the claims, but could not prove them, and his pro se status, are insufficient to establish good
cause. See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) ("petitioner waited years, without
any valid justification, to assert these claims in his November 27, 1996, PCRA petition. Had
petitioner advanced his claims within a reasonable time of their availability, he would not now
be facing any time problem, state or federal. And not only did petitioner sit on his rights for
years before he filed his PCRA petition, but he also sat on them for five more months after
his PCRA proceedings became final before deciding to seek relief in federal court. Under
long-established principles, petitioner's lack of diligence precludes equity's operation.");
Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) ("Ignorance or inadvertence will
not constitute "cause.'"); Garner v. Superintendent, No. 9:10-CV-1406 (GTS), 2012 WL
3929944 at *4 (N.D.N.Y. Sept. 10, 2012) ("Petitioner is not excused from showing cause
because he was proceeding pro se, or was unaware of the applicable procedure or law.").
Additionally, petitioner has not established that any claims related to the alleged altered
reports are not plainly meritless. Rhines, 544 U.S. 269, 275, 277. Petitioner's motion to stay
this action is therefore denied.
Finally, petitioner has not moved to amend his petition to include any claims related to
the alleged altered reports. Fed. R. Civ. P. 15; N.D.N.Y. L.R. 7.1; see Mayle v. Felix, 545
U.S. 644, 664 (2005). To the extent petitioner's papers may be read to include a motion to
amend, however, it is denied. Motions to amend habeas petitions are governed by Rule 15

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of the Federal Rules of Civil Procedure. Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001);
Fama v. Comm'r of Corr. Servcs., 235 F.3d 804, 815-16 (2d Cir. 2000); see 28 U.S.C. § 2242
(a habeas petition "may be amended or supplemented as provided in the rules of procedure
applicable to civil actions").3 Under Rule 15(a)(2), a party may amend its pleadings upon
consent of the opposing party or by leave of the court, and courts "should freely give leave
when justice so requires." Fed. R. Civ. P. 15(a)(2); Littlejohn, 271 F.3d at 363. A court may
deny a motion to amend where the proposed amendment would be futile. O'Hara v. Weeks
Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002).
When a petitioner wants to add new claims to his habeas petition after the expiration
of AEDPA's one year statute of limitations, he or she must show that the proposed
amendment "relates back" to the claims in the original, timely petition. Fed. R. Civ. P. 15(c);
Mayle v. Felix, 545 U.S. 644, 664 (2005). The definition of Rule 15(c)'s "conduct,
transaction, or occurrence" in the habeas context does not encompass a petitioner's
state-court criminal "trial, conviction, or sentence." Mayle, 545 U.S. at 656. To hold
otherwise would mean that "virtually any new claim introduced in an amended petition" would
"relate back" under Rule 15(c), since "federal habeas claims, by their very nature, challenge
the constitutionality of a conviction or sentence, and commonly attack proceedings anterior

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Under Rule 15(a)(1)(A), a party may amend a petition once as a matter of course within "21 days after
serving it." Fed. R. Civ. P. 15(a)(1)(A). Here, more than 21 days passed between the time petitioner filed his
original petition, dated May 31, 2016, and the date of his current motion. Therefore, petitioner may not amend
his petition as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(A). Rule 15(a)(1)(B) provides that if a
pleading is one to which a responsive pleading is required, a party may amend within "21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier." Fed.
R. Civ. P. 15 (a)(1)(B). "Rule 15(a)(1)(B) is inapplicable to habeas petitions because responsive pleadings are
not required." Argraves v. United States, No. 3:11-CV-1421, 2013 WL 1856527 at *2 (D. Conn. May 2, 2013);
see Rule 5(a), Rules Governing Section 2254 Cases in the United States District Courts ("The respondent is not
required to answer the petition unless a judge so orders.").

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thereto." Id. at 657. Instead, the original and amended petitions must "state claims that are
tied to a common core of operative facts" (Mayle, 545 U.S. at 664) and must arise from "the
conduct, transaction or occurrence set out-or attempted to be set out-in the original
pleading." Fed. R. Civ. P. 15(c)(1)(B). If the amended petition asserts a new ground for
relief that is supported by facts that are different "in both time and type" from those in the
original pleading, the amended petition does not relate back. Mayle, 545 U.S. at 649-50,
657.
In this case, the Appellate Division affirmed petitioner's conviction on April 3, 2014,
and the New York Court of Appeals denied leave to appeal on September 12, 2014. People
v. DeFreitas, 116 A.D.3d 1078 (3d Dep't. 2014), lv. denied 24 N.Y.3d 960 (2014). His
conviction became final for purposes of AEDPA ninety days later, on December 11, 2014.
28 U.S.C. §2244(d)(1); 4 Saunders v. Senkowski, 587 F.3d 543, 548-49 (2d Cir. 2009).
Taking into account the time his state court writ of error coram nobis was pending, petitioner
had until June 27, 2016 to file a timely petition. 28 U.S.C. §2244(d)(1). His original petition,
dated May 31, 2016, is timely, but any new claims related to the alleged altered reports are
not unless they relate back to the original petition, or equitable tolling or an equitable
exception applies. 5

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Other dates from which the limitations period may start running are the date on which an
unconstitutional, state-created impediment to filing a habeas petition is removed, the date on which the
constitutional right on which the petitioner bases his habeas application was initially recognized by the Supreme
Court, if the right was newly recognized and made retroactively applicable, or the date on which the factual
predicate for the claim or claims presented could have been discovered through the exercise of due diligence
(newly discovered evidence). 28 U.S.C. § 2244(d)(1)(B)-(D). None of these alternative bases for a later date
upon which the statute of limitations could have begun to run apply in this case.
5

The filing of petitioner's federal habeas petition did not operate to toll AEDPA's statute of limitations
because it is not an "application for State post-conviction or other collateral review" within the meaning of 28
U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

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As noted, petitioner has not specified the constitutional claims he would raise relating
to the alleged altered reports, but there is no reference to the reports in his pending petition.
Without a clear statement of what constitutional claims petitioner would raise, the court
cannot determine if the new, unspecified claims have a "clear connection" to, or relate back,
to the original petition. Gibson v. Artus, 407 F. App'x. 517, 519 (2d Cir. 2010). Petitioner
also has not alleged or established any basis for equitable tolling or the application of an
equitable exception. McQuiggin v. Perkins,

U.S.

, 133 S. Ct. 1924, 1928 (2013);

Holland v. Florida, 560 U.S. 631, 645, 649 (2010). Because it ap pears that any new claims
related to the alleged altered reports would be untimely, it would be futile to permit an
amendment to include them.
V.

CONCLUSION
WHEREFORE, it is
ORDERED that petitioner's motions, Dkt. No. 26, are DENIED; and it is
ORDERED, that briefing in this case is closed and the petition is under review. A

decision will issue in due course. No further submissions will be accepted for filing without
permission from the Court; and it is
ORDERED that the Clerk serve copies of this Decision and Order upon the parties in
accordance with the Local Rules.
Dated: March 6, 2017

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