Goupil v. Graham
Filing
17
ORDER that Petitioner is afforded an opportunity to amend his petition to withdraw the unexhausted claim; withdraw his petition in its entirety, without prejudice and with leave to refile; or seek a stay-and-abeyance order to preserve the timeliness of his original petition while he returns to state court for the purpose of presenting his unexhausted claim to the state courts. Petitioner must notify the Court of which option he is electing within thirty (30) days of this Order. Failure to timely comply with the Courts instructions herein will result in the dismissal of the entire petition. (Copy of this Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 3/16/18. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK GOUPIL,
No. 1:14-cv-00709-MAT
DECISION AND ORDER
Petitioner,
-vsSUPERINTENDENT HAROLD GRAHAM,
Auburn Correctional,
Respondent.
INTRODUCTION
This is a petition for a writ of habeas corpus pursuant to
28
U.S.C.
§
currently
2254. Mark Goupil (“Goupil”
incarcerated
in
Respondent’s
or
“Petitioner”)
custody
pursuant
is
to
a
judgment entered on February 17, 2010, in New York State, Niagara
County Court (Murphy, J.), following a jury verdict convicting him
of
three
counts
of
Predatory
Sexual
Assault
Against
a
Child
(N.Y. Penal Law (“P.L.”) § 130.96).
BACKGROUND
Through
retained
counsel,
Petitioner
filed
the
instant
petition (Doc. 1), asserting the following grounds for relief:
(1) he was denied the right to a fair trial due to the improper
introduction of expert testimony concerning child sexual abuse
accommodation
effective
(a) failed
syndrome
assistance
to
(“CSAAS”);
of
investigate
trial
or
and
counsel
present
(2)
he
was
because
evidence
denied
his
to
the
attorney
refute
the
prosecution’s expert medical testimony, (b) failed to present
expert testimony to rebut the prosecution’s CSAAS testimony, and
(c)
deficiently
cross-examined
the
prosecution’s
witnesses.
Respondent filed an answer and memorandum of law in opposition to
the
petition,
asserting
the
defenses
of
non-exhaustion
and
procedural default. Petitioner filed a reply.
Upon its review of the petition and the state court records,
the Court finds that the petition is a “mixed” petition insofar as
it contains both unexhausted and exhausted claims, as discussed
further below.
EXHAUSTION ANALYSIS
Exhaustion of available state court remedies is a prerequisite
for a habeas petitioner seeking to overturn his state conviction on
the ground that his federal constitutional rights were violated.
See 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004).
“Each substantially independent factual claim made in support of an
allegation of ineffective assistance of counsel must be fairly
presented to a state court before a federal habeas court may rule
upon it.” Jelinek v. Costello, 247 F. Supp.2d 212, 267 (E.D.N.Y.
2003) (citing Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991);
see also Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 96 (2d Cir.
2001) (“[T]he factual basis for an ineffective assistance claim
must, like
other
issues, be
presented to
courts.”).
-2-
all
relevant
state
The
claim
that
the
Court
finds
to
be
unexhausted
is
Petitioner’s argument that trial counsel failed to competently
challenge the prosecution’s medical expert witnesses because she
did not “contest, or even question, the expert testimony” “that
most child victims of sexual assault do not show any physical
evidence.” (Reply (Doc. 15) at 7). Petitioner contends that trial
counsel should have consulted with and retained an expert witness
on behalf of the defense. Petitioner argues that he did exhaust
this claim because, on direct appeal, he raised his ineffective
assistance of counsel argument as to defense counsel’s failure to
effectively cross-examine the victim, and therefore “[w]here an
additional factual claim in support of the ineffective assistance
allegation merely supplements the ineffectiveness claim and does
not fundamentally alter it, the court may consider it in a habeas
petition.” (Doc. 15 at 2 (quoting Gersten v. Senkowski, 299 F.
Supp.2d 84, 100 (E.D.N.Y. 2004) (citing Caballero v. Keane, 42 F.3d
738, 741 (2d Cir. 1994)). The principle stated in Caballero and
cited by Gersten is correct, but the additional factual claim here
(i.e., that trial counsel failed to consult with an expert witness)
“fundamentally alter[s]” the nature of the claim
that trial
counsel’s cross-examination of the prosecution’s medical experts
was deficient. This is because the factual basis underlying both
claims are of
a different nature. A deficient cross-examination
claim is apparent on the face of the trial transcript, and can be
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raised and decided on a direct appeal. See, e.g., Sweet v. Bennett,
353 F.3d 135, 139-40 (2d Cir. 2003). However, a claim that trial
counsel
failed
to
adequately
prepare
by
consulting
with
and
retaining an expert witness on behalf of the defense is necessarily
based on facts dehors the record. See Sweet, 353 F.3d at 139
(“New York courts have held that some ineffective assistance claims
are ‘not demonstrable on the main record’ and are more appropriate
for collateral or post-conviction attack, which can develop the
necessary evidentiary record.”) (quoting People v. Harris, 109
A.D.2d 351, 360, 491 N.Y.S.2d 678, 687 (2d Dep’t 1985); further
citation omitted). Because a claim that trial counsel failed to
consult with an expert witness is based on facts not apparent on
the face of the record,1 it is properly raised in a collateral
motion to
vacate
the judgment
pursuant
to New
York Criminal
Procedure Law (“CPL”) § 440.10. As there is no time limit for
filing such a motion, Petitioner theoretically could return to
state court to exhaust this claim.
Respondent, for his part, is correct that this ineffectiveness
claim is unexhausted, but incorrect that the claim is procedurally
1
For instance, it may be that Goupil’s trial counsel did
consult with a medical expert, but ultimately elected not to retain
or call him or her as a witness; that question is not answered by
the appellate record, and Petitioner has not submitted an affidavit
or declaration from trial counsel describing her preparation for
trial. The “necessary evidentiary record,” Sweet, 353 F.3d at 139,
regarding this claim has not been developed.
-4-
defaulted, since Petitioner does have an avenue in state court by
which to exhaust the claim, i.e., a CPL § 440.10 motion.
The
presence
of
this
unexhausted
claim
renders
Goupil’s
Section 2254 application a “mixed petition.”
TREATMENT OF A MIXED PETITION
In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court
adopted
a
“total
exhaustion”
rule
by
holding
that
a
“mixed
petition” should be dismissed as a whole, “leaving the prisoner
with the choice of returning to state court to exhaust his claims
or of amending or resubmitting the habeas petition to present only
exhausted claims to the district court.” Id. at 510. However, in
1996, the habeas statute was amended to add 28 U.S.C. § 2254(b)(2),
which provides that “an application for a writ of habeas corpus may
be
denied
on
the
merits,
notwithstanding
the
failure
of
the
applicant to exhaust the remedies available to the courts of the
State.” Id. (emphasis supplied). “By the provision’s plain terms,
it is the entire petition that must be dismissible on the merits,
not
just
Saracina
individual
v.
Artus,
unexhausted
No.
04–CV–521
claims
S,
within
2007
WL
the
petition.”
2859722,
at
*9
(W.D.N.Y. Sept. 26, 2007) (citing Moore v. Schoeman, 288 F.3d 1231,
1235 (10th Cir. 2002); Turner v. Artuz, 262 F.3d 118, 121 (2d Cir.
2001) (per curiam) (discussing the AEDPA amendments and concluding
that district courts now have the option of denying mixed petitions
on the merits)); see also Morris v. Reynolds, 48 F. Supp.2d 379,
-5-
385 (S.D.N.Y. 1999) (“[U]nder the AEDPA, this Court can reach the
merits as to unexhausted claims only if it denies them.”) (citing
28 U.S.C. § 2254(b) (2)). Therefore, this Court cannot reach the
merits of Goupil’s petition unless all claims, exhausted and
unexhausted,
will
be
denied.
E.g.,
Dearstyne
v.
Mazzuca,
No. 9:04-CV-0741 FJS/VEB, 2010 WL 10826877, at *9 (N.D.N.Y. July
15, 2010); Saracina, 2007 WL 2859722, at *9.
Under these circumstances, Petitioner has three options. See,
e.g., Dearstyne,
2010
WL 10826877,
at
*9;
Saracina,
2007
WL
2859722, at *10.
First, Goupil may amend his petition so that he
raises only those grounds for which state court remedies have been
exhausted, thereby withdrawing from this Court’s consideration the
unexhausted ineffective assistance of counsel claim.
2010 WL 10826877, at *9 (citation omitted).
Dearstyne,
“The effect of such
withdrawal may be that petitioner will not be permitted to raise
the withdrawn grounds in a second or successive habeas petition.”
Saracina, 2007 WL 2859722, at *10 (citing 28 U.S.C. § 2244(b)). On
the other hand, “[t]his option will likely result in the most
expeditious resolution of the petition.” Id.
The
second
option
is
for
Goupil
to
withdraw
the
entire
petition, and return to state court to exhaust the ineffective
assistance of counsel claim. If he chooses that option, he may then
raise the claims in another petition, which would not be considered
a
second
petition
for
purposes
-6-
of
28
U.S.C.
§
2244(b).
As
Petitioner’s habeas counsel surely is aware, the applicable statute
of limitations is tolled only “during the time in which a properly
filed application for State post-conviction or other collateral
review . . . is pending.” 28 U.S.C. § 2244(d)(2); see also Duncan
v. Walker, 533 U.S. 167 (2001) (holding that an application for
federal habeas corpus review is not an “application for State
post-conviction or other collateral review,” and therefore the time
for filing a federal habeas petition is not tolled during the
pendency of a previously filed federal habeas petition). “Thus, a
petitioner seeking to withdraw the petition in order to exhaust
claims may be foreclosed from coming back to federal court for
habeas relief by the statute of limitations because the time for
filing a federal habeas petition was not tolled for habeas statute
of limitations reasons during the pendency of the petition herein.”
Saracina, 2007 WL 2859722, at *10 n. 15.
Third, Goupil may request that the Court stay this petition
and hold it in abeyance to allow him to present his unexhausted
claim in state court and then return to federal court for review of
his petition once he has exhausted his state remedies. Rhines v.
Weber,
544
U.S.
269,
277
(2005)
(approving
stay-and-abeyance
procedure articulated in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.
2001)). Prior to Rhines, the Zarvela stay-and-abeyance procedure
was
invoked
untimeliness.
routinely
Rhines,
when
a
however,
petitioner
has
-7-
was
in
significantly
danger
curtailed
of
a
district court’s discretion to grant a stay “because granting a
stay effectively excuses a petitioner’s failure to present his
claims first to the state courts[.]” Rhines, 544 U.S. at 277.
Therefore, the Supreme Court cautioned, a “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. Rhines thus instructs district courts to
undertake a thorough analysis of whether there was “good cause” for
the petitioner’s failure to exhaust his claims in state court, the
unexhausted claims are “potentially meritorious,” and there is no
indication that the petitioner engaged in “abusive litigation
practice
or
intentional
delay.”
Id.
at
277-78.
“This
is
a
multi-pronged, difficult standard to meet and a petitioner should
carefully assess the consequences should the stay be denied.”
Saracina, 2007 WL 2859722, at *10.
CONCLUSION
As discussed above, Petitioner has presented this Court with
a “mixed petition” containing exhausted and unexhausted claims.
Petitioner hereby is afforded an opportunity to amend his petition
to withdraw the unexhausted claim; withdraw his petition in its
entirety, without prejudice and with leave to refile; or seek a
stay-and-abeyance order to preserve the timeliness of his original
petition while he returns to state court for the purpose of
presenting his unexhausted claim to the state courts. Petitioner
-8-
must notify the Court of which option he is electing within thirty
(30) days of this Order. Failure to timely comply with the Court’s
instructions herein will result in the dismissal of the entire
petition.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 16, 2018
Rochester, New York
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