Fernandez v. Ercole
OPINION & ORDER ADOPTING REPORT & RECOMMENDATION: re [22 ADDENDUM TO REPORT AND RECOMMENDATION]. For the foregoing reasons, the Court adopts Judge Pitman's Report and Recommendation in its entirety. The Court denies the petition for a writ of h abeas corpus, denies the motion for leave to amend the petition, and denies the motion for a stay of this petition. Because Fernandez has not made a substantial showing of a denial of a constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c); Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court notes that the transcripts of Fernandez' s state-court proceedings have not been publicly filed. No later than June 7, 2017, Respondent shall file these transcripts on the public docket. The Clerk of the Court is respectfully directed to close the case. SO ORDERED. (Signed by Judge Ronnie Abrams on 5/31/2017) (ama)
ELECTRO NI CALLY FILED
DATE FILED: 05/31/3017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. 14-CV-2974 (HBP) (RA)
OPINION & ORDER ADOPTING
REPORT & RECOMMENDATION
RONNIE ABRAMS, United States District Judge:
Petitioner Larry Fernandez, proceeding pro se, petitions for a writ of habeas corpus
challenging his New York state convictions for attempted murder in the second degree, assault in
the first degree, criminal possession of a weapon in the second degree, and criminal possession of
a weapon in the third degree. Before the Court is the Report and Recommendation of Magistrate
Judge Pitman, which recommends that the Court deny Fernandez's petition. Also before the Court
are Fernandez's motions for leave to amend his petition and for a stay of this petition. For the
reasons set forth below, the Court adopts Judge Pitman's thorough and well-reasoned Report and
Recommendation, denies Fernandez's motion for leave to amend, and denies Fernandez's motion
for a stay of this petition.
On or about September 16, 2005, Fernandez shot Martin Santos in the Bronx. See Trial
Tr. at 161-63, 167. Santos suffered serious injuries to his right wrist and left leg, which was
subsequently amputated from the thigh down. See id. at 178, 334--42. On June 27, 2008, a jury
The Court assumes familiarity with the facts underlying this case, see Report at 2-6, and recites
only those facts relevant to Fernandez's present objections and motions.
convicted Fernandez of attempted murder in the second degree, assault in the first degree, criminal
possession of a weapon in the second degree, and criminal possession of a weapon in the third
degree. See id. at 468-69. Fernandez was sentenced to determinate terms of imprisonment of
twenty-five years for attempted murder and assault and fifteen years for criminal possession of a
weapon in the second degree, to be followed by a five-year term of post-release supervision, and
an indeterminate term of imprisonment of two to seven years for criminal possession of a weapon
in the third degree. See Deel. of Marianne Stracquadanio ,-i 6 (Dkt. 8). 2 His sentences were to run
concurrently but consecutively to a previously imposed federal sentence. See id.
Fernandez appealed his conviction to the Appellate Division of the Supreme Court of New
York, First Department. Fernandez argued that the trial court violated his right to a fair trial by
admitting evidence that he sold marijuana and by admitting photographs of Santos's left leg. See
Stracquadanio Deel. Ex. 1 at 18-33. On January 31, 2013, the First Department rejected both
claims. See Stracquadanio Deel. Ex. 3 at 78-79. The First Department reasoned that the trial court
was within its discretion to admit evidence that Fernandez sold marijuana to Santos, which
"provided necessary background information and tended to place aspects of the victim's testimony
in a believable context" and whose prejudicial effect, if any, "was outweighed by [its] probative
value." Id. at 78. The First Department also determined that the trial court did not abuse its
discretion in admitting photographs of Santos's injuries, which "were relevant to establish
elements of the charges, and were not unduly gory or inflammatory." Id. at 79. Fernandez applied
for leave to appeal to the New York Court of Appeals, which denied his application on April 29,
Respondent represents that it has been unable to obtain Fernandez's state-court sentencing records
but submits a sworn declaration describing the sentence imposed. See Stracquadanio Deel. ii 4. Fernandez
does not argue that Respondent's description of his sentence is inaccurate, and his petition does not
challenge his sentence. Accordingly, for purposes of this opinion, the Court accepts Respondent's
characterization of Fernandez's sentence as true.
2013. See People v. Fernandez, 988 N.E.2d 892 (N.Y. 2013).
On April 21, 2014, Fernandez filed the instant habeas petition, which challenged the
admission of evidence that he sold marijuana and photographs of Santos's injuries at trial. See
Pet. (Dkt. 2). Judge Pitman issued a Report and Recommendation (the "Report"), recommending
that the Court deny Fernandez's petition. See Report (Dkt. 13). Fernandez timely filed objections
to the Report, see Obj. (Dkt. 16), to which Respondents did not respond.
Fernandez then moved for leave to amend his petition to include unexhausted claims. See
Mot. to Amend (Dkt. 18). Specifically, Fernandez sought to add claims that the prosecution
violated his rights under Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose (1)
statements of an eyewitness, Vannesa Tejada, to law enforcement officials following the shooting,
and (2) Santos's prior arrests for criminal possession of a weapon and criminal sale of marijuana.
See id. Fernandez also sought to add a claim that the prosecution violated his Confrontation Clause
rights by refusing to permit cross-examination of Tejada. See id. In a separate motion, Fernandez
requested a stay of his habeas petition so that he could exhaust these claims in state court. See
Mot. to Stay (Dkt. 19).
A. Merits of the Petition
Fernandez's petition challenges the state court's admission of evidence regarding his
history of dealing marijuana and photographs of Santos's injuries. The Court concludes that
Fernandez's claims lack merit and adopts Judge Pitman's recommendation to deny the petition.
1. Legal Standards
A district court "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). Under Federal Rule of
Civil Procedure 72(b ), a party may make "specific written objections to the proposed findings and
recommendations" within fourteen days of being served with a copy of a magistrate judge's
recommended disposition. Fed. R. Civ. P. 72(b)(2). A district court must review de novo "those
portions of the report or specified proposed findings or recommendations to which objection is
28 U.S.C. § 636(b)(l).
"However, when the objections simply reiterate previous
arguments or make only conclusory statements, the Court should review the report for clear error."
George v. Prof'! Disposables Int'!, Inc., No. 15-CV-3385 (RA), 2016 WL 6779957, at *l
(S.D.N.Y. Nov. 16, 2016) (quoting Brown v. Colvin, 73 F. Supp. 3d 193, 197 (S.D.N.Y. 2014)).
"Objections of prose litigants are generally accorded leniency and construed to raise the strongest
arguments that they suggest." McNeil v. Capra, No. 13-CV-3048 (RA), 2015 WL 4719697, at *3
(S.D.N.Y. Aug. 7, 2015) (citation omitted). "Nonetheless, even a prose party's objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a 'second bite at the apple' by simply
relitigating a prior argument." Id. (citation omitted).
Under the Antiterrorism and Effective Death Penalty Act of 1995 ("AEDPA"), a federal
court may not grant a habeas petition on the basis of a claim adjudicated on the merits in state court
unless the adjudication of that claim resulted in a decision that was (1) "contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States," or (2) "based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "A state court
decision is 'contrary to ... clearly established Federal law, as determined by the Supreme Court'
when 'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case different! y than [the Supreme Court] has on a
set of materially indistinguishable facts."' Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir.
2017) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A
state-court decision is an 'unreasonable application of clearly established federal law 'if the state
court identifies the correct governing legal principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts of the [petitioner's] case."' Fuentes v. T. Griffin,
829 F.3d 233, 244-45 (2d Cir. 2016) (alterations omitted) (quoting Lockyer v. Andrade, 538 U.S.
63, 75 (2003)). Ultimately, "[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562
U.S. 86, 103 (2011). 3
In general, "[i]ssues regarding the admissibility of evidence in state court concern matters
of state law and are not subject to federal review unless the alleged errors are so prejudicial as to
constitute fundamental unfairness." Nunez v. Conway, 923 F. Supp. 2d 557, 568 (S.D.N.Y. 2013)
"Thus, in evaluating a habeas petitioner's challenge to a state court's
evidentiary ruling, a habeas court should engage in a two-part analysis, examining (1) whether the
trial court's evidentiary ruling was erroneous under New York State law, and (2) whether the error
amounted to the denial of the constitutional right to a fundamentally fair trial." Alston v. Griffin,
No. 12-CV-8092 (CS) (PED), 2014 WL 6663458, at *15 (S.D.N.Y. Oct. 16, 2014) (citing Perez
v. Phillips, 210 F. App'x 55, 57 (2d Cir. 2006) (summary order), and Wade v. Mantella, 333 F.3d
51, 59 (2d Cir. 2003)).
The court examines the last-reasoned state-court decision, which in this case is the decision of the
First Department. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
2. Evidence of Uncharged Crimes
Fernandez first challenges the state court's decision to admit evidence that he sold
marijuana. See Obj. at 2-9. Judge Pitman correctly determined that this decision was neither
contrary to clearly established federal law nor based on an unreasonable determination of the facts.
See Report at 13-16. 4
New York law generally prohibits the introduction of evidence of prior uncharged crimes.
See People v. Molineux, 61 N.E. 286, 293-94 (N.Y. 1901); see also People v. Rojas, 760 N.E.2d
1265, 1267 (N.Y. 2001). "Where, however, evidence of a defendant's bad acts or uncharged
crimes is 'relevant to some material fact in the case, other than the defendant's propensity to
commit the crime charged, it is not to be excluded merely because it shows that the defendant had
committed other crimes."' People v. Israel, 43 N.E.3d 728, 733 (N.Y. 2015) (quoting People v.
Cass, 965 N.E.2d 918, 924 (N.Y. 2012)); accord Liggan v. Senkowski, No. l l-CV-1951 (RA),
2014 WL 5315029, at *4 (S.D.N.Y. Oct. 17, 2014) (citing Rojas, 760 N.E.2d at 1267 & n.2).
Evidence of a defendant's prior bad acts or uncharged crimes may be admitted if it tends to
establish, for example:
(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme
or plan embracing the commission of two or more crimes so related to each other
that proof of one tends to establish the others; and (5) the identity of the person
charged with the commission of the crime on trial.
People v. Denson, 42 N.E.3d 676, 681 (N.Y. 2015) (quoting Cass, 965 N.E.2d at 924).
The First Department reasonably found evidence that Fernandez sold marijuana admissible
under New York law. As the First Department explained, this evidence "provided necessary
Because Fernandez's objections to the Report largely reiterate arguments presented in his original
petition, the Court would ordinarily review his objections for clear error. See, e.g., Quinn v. Stewart, No.
10-CV-8692 (PAE), 2012 WL 1080145, at *4 (S.D.N.Y. April 2, 2012). Here, however, the Court need
not decide whether a de novo or clear error standard applies to Fernandez's objections, as it finds no error,
clear or otherwise, in the Report's analysis of his claims.
background information and tended to place aspects of the victim's testimony in a believable
context." Stracquadanio Deel. Ex. 3 at 78. In light of the well-established connection between
drug dealing and firearms, this evidence provided context for why Fernandez had such easy access
to a gun, which he grabbed from a nearby flower planter to shoot Santos. 5 The First Department
reasonably determined that, without this evidence, the jury may have been less likely to believe
the prosecution's claim that Fernandez encountered a friend on the street, grabbed a firearm, and
shot him at close range with minimal provocation. See id.; see also Pretrial Tr. at 214-15. The
evidence that Fernandez sold marijuana to Santos thus filled an important evidentiary gap in the
Accordingly, the Court finds no error in the First Department's
determination that evidence of Fernandez's history of selling marijuana to Santos was admissible
under New York law. 6
Even if the admission of this evidence violated New York law, Fernandez has not
established that it denied him a fair trial under clearly established federal law. See 28 U.S.C.
§ 2254( d)(l ). As Judge Pitman explained, and as a number of courts in this District have observed,
the Supreme Court has not held that the admission of evidence of a defendant's uncharged crimes
to show the defendant's criminal propensity violates the Due Process Clause. See Estelle v.
McGuire, 502 U.S. 62, 75 n.5 (1991) ("[W]e express no opinion on whether a state law would
violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity
The trial court explained that guns "are associated logically drug dealing. That is not a stretch.
We all know that." See Pretrial Tr. at 218. This view is not objectively unreasonable. Indeed, as Judge
Pitman noted, the Second Circuit has expressly agreed with it. See United States v. Bermudez, 529 F.3d
158, 170 (2d Cir. 2008) ("It is axiomatic that drug dealing and guns go hand in hand.").
At trial, Santos testified-without further objection from defense counsel-that he frequently
bought marijuana from Fernandez. See Trial Tr. at 140 (Q: "And, how would you describe for the Jury
your relationship with the defendant?"; A: "I bought marijuana from him. Sometimes after work, when I
bought it, I would stop and have a conversation with him, and that was pretty much how I knew him, from
to commit a charged crime."); see also, e.g., Williams v. Jacobson, No. 15-CV-5319 (ER) (JLC),
2016 WL 4154700, at *20 (S.D.N.Y. Aug. 5, 2016) ("[T]here is no clear Supreme Court precedent
holding that the admission of propensity evidence (even if prejudicial) is unconstitutional."),
report and recommendation adopted, 2016 WL 7176648 (S.D.N.Y. Dec. 7, 2016); Stenson v.
Heath, No. 11-CV-5680 (RJS) (AJP), 2012 WL 48180, at *15 (S.D.N.Y. Jan. 10, 2012) ("[E]ven
assuming [the petitioner] was able to successfully argue that [the state court] misapplied New York
law in allowing evidence of uncharged crimes, he still would not be eligible for habeas relief
because there is no Supreme Court precedent that such evidence gives rise to a constitutional
violation."), report and recommendation adopted, 2015 WL 3826596 (S.D.N.Y. June 19, 2015);
Parker v. Woughter, No. 09-CV-3843 (GEL), 2009 WL 1616000, at *2 (S.D.N.Y. July 9, 2009)
("[P]etitioner cites no Supreme Court case, and the Court is aware of none, holding that the
admission of evidence of uncharged crimes violates the Due Process Clause of the Fourteenth
Amendment."); Jones v. Conway, 442 F. Supp. 2d 113, 131 (S.D.N.Y. 2006) ("[T]he issue of
whether an admission of uncharged crimes can ever constitute a violation of the Due Process
Clause has not been decided by the Supreme Court."). Accordingly, even if the First Department
erred in determining that evidence of Fernandez's uncharged crimes was admissible under state
law, Fernandez has not demonstrated that the admission of this evidence violated his right to a fair
trial under the Supreme Court's precedents. See 28 U.S.C. § 2254(d)(l); Smith v. Wenderlich, 826
F .3d 641, 649 (2d Cir. 2016) ("When there is no Supreme Court holding on a given issue, 'it cannot
be said that the state court unreasonably applied clearly established Federal law' within the
meaning of AEDP A." (alterations omitted) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006))).
3. Photographs of Santos's Injuries
Fernandez next claims that the state court denied him a fair trial by admitting two
photographs of Santos's injuries. See Obj. at 9. As discussed above, these photographs depicted
Santos's injured leg before and after amputation. See Trial Tr. at 82; see also Addendum to Report
& Recommendation (Dkt. 22).
The Court again agrees with Judge Pitman that the First
Department did not violate clearly established federal law or make an unreasonable determination
of the facts in rejecting this claim.
As Judge Pitman explained, New York law permits the admission of photographs of an
injured or deceased victim "if they tend to prove or disprove a disputed or material issue, to
illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence
offered or to be offered," even when they "portray a gruesome spectacle and may tend to arouse
passion and resentment against the defendant in the minds of the jury." People v. Pobliner, 298
N.E.2d 637, 645 (N.Y. 1973); see also, e.g., Rhodes v. Artus, No. 09-CV-4251 (ER) (PED), 2016
WL 7176645, at *6 (S.D.N.Y. Dec. 8, 2016); Stover v. Ercole, No. 08-CV-6737 (SAS), 2011 WL
814710, at *7 (S.D.N.Y. Mar. 8, 2011). Thus, under New York law, "[p]hotographic evidence
should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice
the defendant." Pobliner, 298 N.E.2d at 645 (emphasis added).
The First Department reasonably determined that the photographs were admissible under
New York law. The First Department found that Santos's injuries were "relevant to establish
elements of the charges." Stracquadanio Deel. Ex. 3 at 79. In particular, these photographs tended
to show that Santos suffered "serious physical injury," a necessary element of the state's charge of
assault in the first degree.
See N.Y. Penal L. § 120.10. Moreover, the Court finds nothing
objectively unreasonable in the First Department's determination that these photographs were not
"unduly gory or inflammatory." Stracquadanio Deel. Ex. 3 at 79. Accordingly, the Court agrees
with Judge Pitman that the state court was reasonable in finding the photographs admissible under
New York law. See, e.g., People v. Coleman, 48 N.Y.S.3d 478, 480 (2d Dep't 2017) (holding that
the trial court acted within its discretion in admitting "an autopsy photograph of the victim's skull
with the scalp removed" in a trial for gang assault in the first degree, as the photograph was not
"excessively gruesome" and was introduced "to corroborate the testimony of the medical
examiner"); People v. Keegan, 20 N.Y.S.3d 796, 799 (4th Dep't 2015) (holding that the trial
court's admission of photographs of an infant victim's injuries was not improper because "[i]n
order to prove that defendant committed the offense of assault in the first degree, the People were
required to establish that defendant acted recklessly and with a depraved indifference to human
life, and thereby caused serious physical injury to the infant victim" (citing N.Y. Penal L.
§ 120.10)); People v. Nieves, 720 N.Y.S.2d 34, 35 (1st Dep't 2001) (holding that the trial court
properly admitted "a series of photographs depicting the victim's injuries" in a trial for assault in
the first degree, as the photographs "were not inflammatory and were relevant to prove that the
injuries resulted in permanent disfigurement").
Even if the First Department erred in determining that the photographs were admissible
under New York law, Fernandez has not demonstrated that their admission denied him a fair trial
under the Supreme Court's precedents. Fernandez has cited no Supreme Court case, and the Court
has found none, holding that the admission of photographic evidence may render a trial
fundamentally unfair. Indeed, the Eighth Circuit has noted that "[t]he Supreme Court's guidance
in this area is quite general," and "the Supreme Court has never held that the admission of
indisputably relevant evidence amounts to a denial of due process." Middleton v. Roper, 498 F.3d
812, 820-21 (8th Cir. 2007). Moreover, before and after AEDP A was enacted, several other
circuits have held the admission of photographs of a victim does not violate due process, at least
when they are relevant to an issue in dispute and not excessively gruesome. See, e.g., Wilson v.
Sirmons, 536 F.3d 1064, 1114-15 (10th Cir. 2008) (holding that the admission of a gruesome
photograph of a murder victim's body did not render a capital murder trial fundamentally unfair
under AEDP A, where the photographs were probative of the attacker's intent to kill and permitted
the medical examiner to analyze the cause of the victim's injuries), reinstated sub nom. Wilson v.
Workman, 577 F.3d 1284 (10th Cir. 2009); Frazier v. Huffman, 343 F.3d 780, 789-90 (6th Cir.
2003) (holding that a state court's rejection of a due process challenge to "the admission of multiple
photographs of[a victim's] corpse was not an unreasonable application of federal law as articulated
by the Supreme Court"), supplemented on denial of reh 'g, 348 F.3d 174; Gomez v. Ahitow, 29
F.3d 1128, 1139-40 (7th Cir. 1994) (holding that the admission of "several 'gruesome'
photographs of [the victim's] body at the scene of the homicide" did not deny the defendant a fair
trial, even though the "only conceivable reason for placing them in evidence was to inflame the
jury"); cf Jacobs v. Singletary, 952 F.2d 1282, 1296 (11th Cir. 1992) ("The introduction of graphic
photographic evidence rarely renders a proceeding fundamentally unfair.").
At a minimum,
therefore, the Court cannot conclude that there is "no possibility fairminded jurists could disagree
that the state court's decision conflicts with [the Supreme Court's] precedents." Richter, 562 U.S.
In sum, the Court rejects Fernandez's objections to the Report. The Court has reviewed
the remainder of the Report for clear error and, finding none, adopts the Report and
Recommendation in its entirety.
B. Motion for Leave to Amend
Fernandez also requests leave to amend his petition to include unexhausted claims. This
request is denied.
Under AEDP A, a federal habeas petition must be filed within one year of the latest of four
dates, including "the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(l)(A). Fernandez
does not dispute that this one-year period has passed: his conviction became final on or about July
28, 2013, which was his deadline to seek direct review of the New York Court of Appeals' denial
of his leave to appeal via a writ of certiorari from the United States Supreme Court. See id.
Accordingly, AEDPA's one-year statute oflimitations expired on or about July 28, 2014. See id. 7
Because the statute oflimitations has passed, Fernandez's new claims are untimely unless
they relate back to his original petition under Federal Rule of Civil Procedure 15(c). Rule 15(c)
provides that an "amendment to a pleading relates back to the date of the original pleading" when,
inter alia, "the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original pleading."
Fed. R. Civ. P.
15(c)(l)(B). In the habeas context, an amendment relates back only where both the original and
amended petitions "state claims that are tied to a common core of operative facts." Mayle v. Felix,
545 U.S. 644, 664 (2005). An amended habeas petition does not, however, "relate back (and
thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported
by facts that differ in both time and type from those the original pleading set forth." Id. at 650.
Under this standard, it is not sufficient for a newly asserted claim to simply arise from the "same
Under 28 U.S.C. § 2244(d)(l)(D), AEDPA's 1-year statute of limitations may begin to run from
"the date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence," provided that this date is the latest of the four dates identified in
Section 2244(d)(l). See 28 U.S.C. § 2244(d)(l)(D). Here, Fernandez claims that he received "various
documents" related to one of his newly asserted claims as recently as May 2016. See Mot. to Amend at
17-18. However, as discussed below, Fernandez discovered the "factual predicate" of his newly asserted
claims no later than 2008, more than six years before he filed this petition. 28 U.S.C. § 2244(d)(l)(D).
Thus, Fernandez cannot claim that his newly asserted claims are timely under Section 2244(d)(l)(D).
trial, conviction, or sentence" as those claims asserted in the original petition. Id. at 662-64.
Here, the unexhausted claims Fernandez seeks to assert do not arise from the same "core
of operative facts" as those raised in his original petition. The original petition asserts claims for
due process violations on the basis of the trial court's admission of evidence regarding Fernandez's
history of dealing marijuana and photographs of Santos's injuries. The proposed amendments, by
contrast, assert Brady violations on the basis of the prosecution's failure to disclose evidence of
an eyewitness's statement and Santos's prior arrests, as well as a Confrontation Clause claim based
on the trial court's failure to permit cross-examination of the eyewitness. Fernandez's original
petition did not address, even in general terms, the eyewitness's testimony or Santos's prior arrests.
These newly asserted claims are thus "supported by facts that differ in both time and type from
those the original pleading set forth." Mayle, 545 U.S. at 650. Consequently, these newly asserted
claims do not relate back to the date of his original petition under Rule 15(c) and are untimely
under Section 2244. See, e.g., Scott v. Rock, No. 10-CV-5989 (SLT), 2017 WL 105907, at *6
(E.D.N.Y. Jan. 10, 2017) (finding that an amended petition asserting claims for ineffective
assistance of counsel and for defects in a lineup procedure did not relate back to the original
petition, which asserted claims for the denial of a fair trial, a Brady violation, and a Batson
challenge); Ermichine v. United States, No. 06-CV-10208 (LAP) (JL), 2011WL1842951, at *12
(S.D.N.Y. May 12, 2011) (finding that an amended petition asserting an actual innocence claim
did not relate back to the original petition, which asserted claims for the denial of counsel of choice
and ineffective assistance of counsel); Kirk v. Burge, 646 F. Supp. 2d 535, 551 (S.D.N.Y. 2009)
(denying relation back where "[n]one of the new ineffective assistance claims have any factual
connection to the claims in the original petition,'' which asserted claims for, inter alia, a speedy
trial violation and excessive sentencing).
C. Motion for Stay of the Petition
Fernandez also moves to stay this habeas petition while he exhausts his newly asserted
claims in state court. In the context of "mixed petitions" raising both exhausted and unexhausted
claims, "stay and abeyance is only appropriate when the district court determines there was good
cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544
U.S. 269, 277 (2005). "Moreover, even if a petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him a stay when his unexhausted claims are
plainly meritless." Id. Here, a stay is not warranted because Fernandez's petition does not include
unexhausted claims: as discussed above, his newly asserted claims do not relate back to his original
petition, leaving a petition with only exhausted claims.
Even if Fernandez's newly asserted claims did relate back to the original petition, he has
not demonstrated "good cause" for failing to first exhaust these claims in state court. At the latest,
Fernandez became aware of the facts underlying these claims during or in the immediate aftermath
of his 2008 trial. In particular, Fernandez's trial counsel learned of Tejada's statements to law
enforcement no later than March 20, 2008, two days after his trial began but while trial was
ongoing, see Trial Tr. at 267, 8 and discovered Santos's prior arrests no later than April 8, 2008, six
days after the jury returned his guilty verdicts, see Mot. to Amend at 11-13. 9 Fernandez has
At trial, shortly after defense counsel raised a Brady claim related to Tejada's statements, the
court told defense counsel: "You have this Brady material in time to use at trial. You can call Miss Tejada."
Trial Tr. at 267. The trial court also told defense counsel that it would be "happy to grant" an adjournment
to investigate any Brady issue related to Tejada's statements. Id. at 271. In response to the court's
questions, defense counsel confirmed that he had had an opportunity to speak to Tejada and that she would
not testify. See id. at 350 ("The Court: Just to make the record clear, did you have an opportunity to speak
with that Vanessa witness yesterday? Mr. DeMarco: Yes, Judge. The Court: And she's not going to testify?
Mr. DeMarco: And she's not going to testify.").
In a decision and order dated June 20, 2008, the trial court denied Fernandez's motion to set aside
his verdict on the basis of the prosecution's alleged failure to disclose Santos' s prior arrests. See Mot. to
Stay Ex. A. The trial court determined that the prosecution did not have knowledge of Santos's prior arrests
and thus had no duty to disclose information regarding these arrests. See id. at 2-3. Specifically, the trial
court found that, in compliance with New York law, records of Santos's prior arrests "were properly sealed
offered no explanation for failing to raise his Brady claim regarding Tejada's statements in his
original petition. With respect to his Brady claim regarding Santos's prior arrests, Fernandez
asserts that he did not receive "various documents" relating to the arrests until May 2016, when
his wife received the documents from the Bronx County Clerk's Office and delivered them to him
in prison. See Mot. to Amend at 17-18. Less than two weeks after his trial, however, Fernandez
filed a motion for a new trial, in which he specifically alleged that he had received Santos's arrest
records, including the criminal complaints, in April 2008-approximately six years before he filed
this petition. See id. at 11-12. Fernandez does not claim that the records he received in May 2016
differ in substance, if at all, from those he had discovered immediately after his trial in 2008. Nor
does Fernandez claim that he could not have asserted a Brady claim in his original habeas petition
on the basis of the records he had previously obtained. Thus, even if Fernandez did not receive
certain records supporting his Brady claim until May 2016, he has not demonstrated good cause
for failing to assert this claim in his original habeas petition. Accordingly, even if Fernandez's
petition were amended to include his unexhausted claims, Fernandez has not demonstrated that a
stay of this petition would be proper. See, e.g., Holguin v. Lee, No. 13-CV-1492 (LGS) (JLC),
2013 WL 3344070, at *2 (S.D.N.Y. July 3, 2013) (denying stay for lack of good cause where
petitioner was aware of underlying facts at the conclusion of trial); Spells v. Lee, No. l 1-CV-1680
(KAM), 2012 WL 3027865, at *6 (E.D.N.Y. July 23, 2012) (denying stay for lack of good cause
where petitioner was aware of underlying facts for more than two and a half years prior to filing
and not indicated on [his] rap sheet," leaving "no reason for the [prosecution] to be aware of these arrests."
Id. at 3. The trial court further concluded that, in any event, Fernandez was not prejudiced by any delay in
obtaining Santos' s arrest records because "defense counsel already was given the opportunity to extensively
question [Santos] concerning [Santos's] own criminal conduct." Id.
For the foregoing reasons, the Court adopts Judge Pitman's Report and Recommendation
in its entirety. The Court denies the petition for a writ of habeas corpus, denies the motion for
leave to amend the petition, and denies the motion for a stay of this petition. Because Fernandez
has not made a substantial showing of a denial of a constitutional right, the Court declines to issue
a certificate of appealability. See 28 U.S.C. § 2253(c); Love v. McCray, 413 F.3d 192, 195 (2d
The Court notes that the transcripts of F emandez' s state-court proceedings have not been
publicly filed. No later than June 7, 2017, Respondent shall file these transcripts on the public
The Clerk of the Court is respectfully directed to close the case.
May 31, 2017
New York, New York
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