Rodriguez v. Griffin

Filing 30

DECISION AND ORDER: ORDERED, that; 1. Petitioner's motion to amend his petition, Dkt. No. 26 , is GRANTED; 2. Petitioner's motion to stay his amended habeas petition, Dkt. No. 27 , is GRANTED; 3. The Clerk shall send to petitioner a copy of the signature page of his proposed amended petition (Dkt. No. 26-1, at 37). Petitioner must sign and date the signature page and return it to this Court by no later than thirty (30) days after the filing date of this Decision and Order; 4. Upon receipt of the signed and dated signature page, the Clerk shall file the proposed amended petition (Dkt. No. 26-1) as an amended petition; 5. Petitioner must advise the Court in writing, every thirty (30) days, of the status of the pending sta te court application, include the date upon which any decision is reached; 6. Within thirty (30) days of the date upon which the final state court capable of reviewing petitioner's application reaches a decision, petitioner must notify the Cou rt of that decision; 7. If petitioner fails to comply with the terms of this Order, the stay shall be immediately lifted and the file returned to the Court for further proceedings; 8. No response to the amended petition will be required until petitioner completes exhaustion of his ineffective assistance of appellate counsel claim and the stay is lifted. Signed by Judge David N. Hurd on 4/5/17. (served on petitioner with dkt. no. 26-1 by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOSE A. RODRIGUEZ,
Petitioner,
v.

9:16-CV-1037
(DNH)

THOMAS GRIFFIN,
Respondent.

APPEARANCES:

OF COUNSEL:

JOSE A. RODRIGUEZ
11-B-3913
Petitioner pro se
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12585
HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
120 Broadway
New York, New York 10271

DENNIS A RAMBAUD, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge

DECISION and ORDER
I. INTRODUCTION
In August of 2016, petitioner Jose A. Rodriguez ("Rodriguez" or "petitioner") filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District
Court for the Southern District of New York. Dkt. No. 2, Petition ("Pet."). The petition was
subsequently transferred to the Northern District. Dkt. No. 6.

In his petition, Rodriguez challenges the constitutionality of his 2011 conviction, after a
jury trial in the Otsego County Court, of the crimes of operating as a major trafficker and
criminal sale of a controlled substance in the third degree (four counts). Pet. at 1. According
to petitioner, he was sentenced to forty years in prison. Id.
In papers dated February 28, 2017, Rodriguez moves to amend his habeas petition to
include an additional claim of ineffective assistance of appellate counsel, and a renewed
motion to stay the amended petition while he exhausts this claim in state court. See Dkt. No.
26, Motion to Amend; Dkt. No. 26-1, Proposed Amended Pleading; Dkt. No. 27, Renewed
Motion to Stay; Dkt. No. 27-1, Exhibits.
Respondent has filed a response to the motions. Dkt. No. 28, Respondent's
Response ("Resp. Resp.").
II. BACKGROUND
In his motion to amend, Rodriguez explains that he seeks to add one additional
ground for habeas relief: petitioner received ineffective assistance of appellate counsel
"when [counsel] omitted issues that have a reasonable probability of success." Dkt. No. 271, Proposed Amended Pleading, at 32.
Rodriguez raised this claim in a second coram nobis petition before the Appellate
Division, Third Department, which, according to petitioner, is still pending before that
court. Dkt. No. 27, Mot. to Amend, at 3. For a complete statement of petitioner's claims,
reference is made to the Proposed Amended Petition. see Dkt. No. 27-1.
Rodriguez also moves to stay the proposed amended petition pending the outcome of
his second coram nobis petition pending before the Appellate Division. Dkt. No.

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27. Petitioner argues he diligently filed a second coram nobis petition in state court as soon
as he became aware of the alleged constitutional violation by his appellate counsel. Id. at
4-7. He also maintains that, as a pro se petitioner, he had lim ited access to the law library
and limited knowledge to discover the alleged constitutional violations. Id.
III. ANALYSIS
Motions to amend habeas petitions are governed by Rule 15 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").
Under Rule 15(a)(2), a party may amend its pleadings upon consent of the opposing
party or leave of the court, and courts "should freely give leave when justice so
requires." FED. R. CIV. P. 15(a)(2). Respondent does not oppose Rodriguez's motion to
amend, and acknowledges that "petitioner has not previously amended his petition and
respondent has no yet answered the original petition." Dkt. No. 28. Accordingly, petitioner's
motion to amend is granted.
Notably, Rodriguez's proposed amended petition is "mixed" because it contains both
exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). W hen a
district court is presented with a "mixed petition" containing both exhausted 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. Id. at 275-76.
Here, respondent does not oppose Rodriguez's request to stay the amended petition

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pending exhaustion of his ineffective assistance of appellate counsel claim, and has not
refuted petitioner's claim of good cause for failing to exhaust his claim before filing his
habeas petition. Dkt. No. 28; see also Rhines v. Weber, 544 U.S. at 277-78.
It cannot be determined based on the submissions currently available that petitioner's
unexhausted claim is plainly meritless, and it does not appear that petitioner eng aged in any
dilatory tactics. Rhines v. Weber, 544 U.S. at 277. Therefore, petitioner's motion to stay his
amended petition is granted.
Federal courts should not, however, be turned into a "jurisdictional parking lot" for
unexhausted claims. Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004) (quoting
Baity v. McCary, No. 1:02-CV- 1817, 2002 W L 31433293, at *2 (S.D.N.Y. Oct. 31, 2002)
(internal citations and quotations omitted); see also Raucci v. Kirkpatrick, No. 9:16-CV-0031
(BKS), 2016 WL 204495, at *3 (N.D.N.Y. Jan. 15, 2016).
Therefore, Rodriguez must advise the Court in writing every thirty (30) days of the
status of the pending state court proceeding, including the date upon which any decisions
are reached in those proceedings.
Within thirty (30) days of the date upon which the final state court capable of
reviewing Rodriguez's applications has reached a decision, 1 petitioner must notify the Court
in writing of the decision(s).
Rodriguez is also cautioned that if he fails to comply with the terms of this Order, the

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To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively.
Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas
corpus petition. Substantive exhaustion requires that a petitioner "fairly present" each claim for habeas relief in
"each appropriate state court (including a state supreme court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan
v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1981)).

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stay shall be immediately lifted and the file returned to the Court for further proceedings.
Therefore, it is
ORDERED that
1. Petitioner's motion to amend his petition, Dkt. No. 26, is GRANTED;
2. Petitioner's motion to stay his amended habeas petition, Dkt. No. 27, is GRANTED;
3. The Clerk shall send to petitioner a copy of the signature page of his proposed
amended petition (Dkt. No. 26-1, at 37). Petitioner m ust sign and date the signature page
and return it to this Court by no later than thirty (30) days after the filing date of this Decision
and Order;
4. Upon receipt of the signed and dated signature page, the Clerk shall file the
proposed amended petition (Dkt. No. 26-1) as an amended petition;
5. Petitioner must advise the Court in writing, every thirty (30) days, of the status of
the pending state court application, include the date upon which any decision is reached;
6. Within thirty (30) days of the date upon which the final state court capable of
reviewing petitioner's application reaches a decision, petitioner m ust notify the Court of that
decision;
7. If petitioner fails to comply with the terms of this Order, the stay shall be
immediately lifted and the file returned to the Court for further proceedings;
8. No response to the amended petition will be required until petitioner completes
exhaustion of his ineffective assistance of appellate counsel claim and the stay is lifted; and
9. The Clerk shall serve a copy of this Decision and Order upon the parties in
accordance with the Local Rules.

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IT IS SO ORDERED.

Dated: April 5, 2017
Utica, New York.

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