Newman v. Lempke

Filing 21

ORDER denying 17 Motion to Stay; denying 20 Motion to Stay. Signed by Hon. H. Kenneth Schroeder, Jr on 9/30/2014. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RODNEY M. NEWMAN,
Petitioner
-v-

13-CV-531

J. LEMPKE,
Respondent.
___________________________________

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report
on dispositive motions. Dkt. #9.

Petitioner commenced this habeas corpus action seeking relief pursuant
to 28 U.S.C. § 2254 from his convictions following a jury trial of promoting a sexual
performance by a child, in violation of New York Penal Law § 263.15; two counts of
unlawful surveillance, second degree, in violation of New York Penal Law § 250.45(2);
forcible touching, in violation of New York Penal Law § 130.52; and two counts of
endangering the welfare of a child, in violation of New York Penal Law § 260.10(1), for
which he is currently serving a principal sentence of 2a to 7 years. Dkt. #1. Petitioner
claims that: (1) the evidence was insufficient to support conviction on the charge of
promoting a sexual performance by a child and the verdict was against the weight of the
evidence; (2) the admission of videotape evidence was without sufficient foundation or
demonstration of an appropriate chain of custody; and (3) he is innocent and his
conviction constitutes a miscarriage of justice caused, in part, by trial counsel’s failure

to investigate and prepare for trial and to call petitioner’s brother as an alibi witness.
Dkt. #1.

In response to the petition, respondent argues that the only constitutional
claim that was properly exhausted in the state court proceedings was the claim of legal
sufficiency of the evidence. Dkt. #16, p.15.

Currently before the Court is petitioner’s motion to hold his petition for writ
of habeas corpus in abeyance while he exhausts his state remedies. Dkt. #17.
Specifically, petitioner seeks to pursue his claims of ineffective assistance of counsel
and actual innocence by filing a motion pursuant to New York Criminal Procedure Law
§ 440 (“C.P.L. § 440 ”). Dkt. #17, p.2.

Respondent opposes the motion on the ground that petitioner has failed
to demonstrate good cause for his failure to exhaust his claims prior to the filing of this
petition. Dkt. #18, ¶ 4.

In reply, petitioner declares that he asked appellate counsel to pursue a
C.P.L. § 440 claim of ineffective assistance of trial counsel in conjunction with his direct
appeal, but was informed by letters dated July 8, 2011 and October 28, 2011 that there
were no grounds for such a claim. Dkt. #20, ¶ 4 & Dkt. #20, p.7. Thereafter, petitioner
retained another attorney who did not proceed with petitioner’s claim of ineffective
assistance of counsel and instead returned petitioner’s retainer in December of 2012.
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Dkt. #20, ¶ 4 & Dkt. #20, p.9. Petitioner declares that his limited legal knowledge
prevented him from proceeding pursuant to C.P.L. § 440, and that the statute of
limitations forced him to concentrate on this habeas petition rather than the C.P.L. §
440 motion. Dkt. #20, ¶ 5. Petitioner declares that his ineffective assistance of trial
counsel claim has merit because his trial attorney
did nothing to prepare for trial including, request a bill of particulars
and speak with the alibi witness, [sic] at trial counsel did not
effectively cross-examine the prosecution’s key witnesses using
their prior inconsistent statements and testimony. Impeachment of
key witnesses could have opened the door to testimony favorable
to the petitioner, undermined the prosecutions [sic] trial theory, and
cast doubt on complainants [sic] credibility.
Dkt. #20, ¶ 6. Petitioner declares that his actual innocence claim has merit because the
alibi testimony would have established that petitioner was not present at the time of the
sexual performance. Dkt. #20, ¶ 6.

DISCUSSION AND ANALYSIS
28 U.S.C. § 2244(d)(1) provides a one year statute of limitation upon
petitions for writ of habeas corpus. The statute of limitations begins to run on 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)(1)(A). In the instant case, the
statute began to run on May 15, 2012 – 90 days after the New York Court of Appeals,
in People v. Newman, 18 N.Y.3d 926 (2012), denied plaintiff leave to appeal from the
affirmance of his conviction by the Appellate Division. Williams v. Artuz, 237 F.3d 147,
151 (2d Cir.) (AEDPA limitations period begins to run upon “completion of direct
appellate review in the state court system and either the completion of certiorari
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proceedings in the United States Supreme Court, or – if the prisoner elects not to file a
petition for certiorari – the time to seek direct review via certiorari has expired.”), cert.
denied, 534 U.S. 924 (2001). Thus, the statute of limitations expired on May 15, 2013
and the petition, dated May 14, 2013, was timely. See Adeline v. Stinson, 206 F.3d
249, 251 n.1 (2d Cir. 2000)(In accordance with the “prison mailbox rule,” when a
prisoner is proceeding pro se, the court will consider his petition for writ of habeas
corpus to have been filed as of the date it was signed and dated).

A habeas petition containing both exhausted and unexhausted claims is a
“mixed petition.” Rhines v. Weber, 544 U.S. 269, 271 (2005). When presented with a
mixed petition, the Court may dismiss the petition entirely; allow the petitioner to
withdraw the unexhausted claims; or stay the petition and hold it in abeyance while the
petitioner presents the unexhausted his claims in state court. Id. at 276-77. “Because
granting a stay effectively excuses a petitioner’s failure to present his claims first to the
state courts, 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.” Id. at 277. Even if a petitioner had good cause for the failure to exhaust his
state remedies in the first instance, the district court would abuse its discretion if it were
to grant a stay if the unexhausted claims are plainly meritless. Id. In addition, the
district court must guard against abusive litigation tactics or intentional delay. Id. at
278. Thus, the district court should only grant a motion to stay a habeas petition that
contains both exhausted and unexhausted claims if: (1) the petitioner had good cause

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for his failure to exhaust; (2) the unexhausted claims are potentially meritorious; and (3)
the petitioner did not engage in intentionally dilatory litigation tactics.” Id. at 278.

Although there is relatively little guidance as to what constitutes good
cause under Rhines, the lower courts have generally concluded that
the good cause standard applicable in consideration of a
request for stay and abeyance of a federal habeas petition
requires the petitioner to show that he was prevented from
raising the claim, either by his own ignorance or confusion
about the law or the status of his case, or by circumstances
over which he had little or no control, such as the actions of
counsel either in contravention of the petitioner’s clearly
expressed desire to raise the claim or when petitioner had
no knowledge of the claims existence.
Hanesworth v. Greene, 2007 WL 1201585, at *3-4 (W.D.N.Y. April 22, 2007), quoting
Riner v. Crawford, 415 F. Supp.2d 1207, 1211 (D. Nev. 2006); See Nickels v. Conway,
No. 10-CV0413, 2013 WL 4403922, at *5 (W.D.N.Y. Aug. 15, 2013) (reasonable
confusion about state court procedure constitutes good cause); Keating v. People, 708
F. Supp.2d 292, 299-300 (E.D.N.Y. 2010) (confusion as to whether claims were
exhausted satisfies good cause requirement).

In contrast, district courts have determined that they “cannot grant
petitioner a stay of his habeas petition for the sole reason that petitioner failed to bring
his claim earlier.” Holguin v. Lee, No. 13 Civ. 1492, 2013 WL 3344070, at *2 (S.D.N.Y.
July 3, 2013), quoting Spells v. Lee, No. 11-CV-1680, 2012 WL 3027865, at *6
(E.D.N.Y. July 23, 2012); See Scott v. Phillips, 2007 WL 2746905, at *7 (E.D.N.Y. Sept.

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19, 2007) (“Were the Court to grant a stay simply on the basis that petitioner did not
bring the claim earlier, despite admittedly being previously aware of the facts supporting
the claim, it would be defeating AEDPA’s twin purposes of encouraging finality and
increasing the incentives for petitioners to exhaust all claims prior to filing habeas
petition in federal court.”). A pro se petitioner’s lack of legal acumen is also insufficient
to demonstrate good cause. See Holguin, 2013 WL 3344070, at *2; Madrid v. Ercole,
No. 08 Civ. 4397, 2012 WL 6061004, at *2 (E.D.N.Y. Dec. 6, 2012); Spells, 2012 WL
3027865, at *7.

In the instant case, petitioner articulated his ineffective assistance of
counsel claim prior to the filing of his appeal of the underlying conviction and was
aware, more than four months prior to the expiration of the statute of limitations, that
neither his appellate counsel nor another attorney retained by petitioner would be
presenting this claim to the state courts in a C.P.L. § 440 motion. Petitioner concedes
that the claim is unexhausted and does not argue that he lacked the factual basis or
failed to understand the process for presenting it to the state courts. Accordingly,
petitioner has failed to demonstrate good cause for his failure to exhaust his state court
remedies. As a result, his motion to stay is denied.

SO ORDERED.
DATED:

Buffalo, New York
September 30, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR
United States Magistrate Judge
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