Cordero v. Miller

Filing 35

DECISION AND ORDER adopting Report and Recommendations re 19 Report and Recommendations.; denying 28 Motion to Appoint Counsel ; denying 28 Motion to Amend or Correct; denying 28 Motion for Extension of Time to Complete Discovery. Petition [Dkt. 1] is dismissed. (Clerk to close case.) (Copy of this Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 7/9/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
CIRITO CORDERO,
Petitioner,

DECISION AND ORDER
No. 1:15-cv-00383(JJM)(MAT)

-vsCHRISTOPHER MILLER,
Respondent.
________________________________
I.

Introduction
This matter comes before the Court following United States

Magistrate Judge Jeremiah J. McCarthy’s filing of a Report and
Recommendation (Docket No. 19) on May 4, 2017. See 28 U.S.C.
§ 636(b)(1)(B); Western District of New York Local Rule 72(b), (c).
In

his

Report

and

Recommendation

(“R&R”),

Judge

McCarthy

recommended that the petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by pro se petitioner Cirito Cordero be
denied, and that no certificate of appealability should issue.
The parties were given until May 22, 2017, to file objections
to the R&R. Cordero sought repeated extension of time to file
objections (Docket Nos. 20, 22, 24, & 26), all of which were
granted. On December 18, 2017, Cordero filed an Affidavit in
Support of a Stay and Abeyance and a Motion to Appoint Counsel
(Docket No. 28). About two months later, Cordero a Motion for an
Extension of Time to File a Supplemental Stay and Abeyance (Docket
No. 29).

On

April

2,

2018,

the

matter

was

transferred

to

the

undersigned. On April 9, 2018, Cordero filed a Motion to Appoint
Counsel and a Motion for an Extension of Time to File (Docket
No. 33). On April 16, 2018, the Court entered a text order (Docket
No. 34) granting Cordero an extension of time until May 31, 2018,
to file a Supplemental Application for a Stay and Abeyance and
Other Related Relief, and denying the Motion to Appoint Counsel
without prejudice.
To date, Cordero has not filed a Supplemental Application for
a Stay and Abeyance and Other Related Relief. Respondent has filed
no objections to the R&R, and has not filed any papers in response
to Cordero’s Application for a Stay and Abeyance.
For the reasons discussed below, the Court adopts the R&R in
its entirety, and denies Petitioner’s Application for a Stay and
Abeyance, as well as his Motion to Appoint Counsel, and requests to
expand the record and complete discovery.
II.

The Application for a Stay and Abeyance
A.

Overview

Petitioner has requested a stay in order to allow him to
complete “several applications” in State court raising issues that
allegedly relate back to his original habeas corpus petition. The
“applications” include a proceeding pursuant to New York Civil
Practice Law and Rules (“C.P.L.R.”) Article 78 to obtain copies of
the victims’ medical records, a motion for a writ of error coram

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nobis claiming ineffective assistance of appellate counsel, and a
request for assignment of counsel in connection with a motion to
vacate based on ineffective assistance of trial counsel. (Docket
No. 29 at 1). He asserts that a stay also is “needed in order for
him to raise to the appropriate objections” to the R&R. (Id.).
B.

Legal Principles

When confronted with a 28 U.S.C. § 2254 habeas petition that
presents some claims that have not been properly exhausted in state
court, i.e., a “mixed petition,” district courts may grant a stay
“only in limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277
(2005) (noting that staying a federal habeas petition “frustrates
AEDPA’s objective of encouraging finality by allowing a petitioner
to delay the resolution of the federal proceedings” and “undermines
AEDPA’s

goal

of

streamlining

federal

habeas

proceedings

by

decreasing a petitioner’s incentive to exhaust all his claims in
state court prior to filing his federal petition”). Accordingly,
the Supreme Court stated in Rhines that “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. “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. (citing 28 U.S.C. § 2254(b)(2) (“An application for
a

writ

of

habeas

corpus

may
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be

denied

on

the

merits,

notwithstanding

the

failure

of

the

applicant

to

exhaust

the

remedies available in the courts of the State”)).
C.

Application

Here, Cordero’s petition was not a “mixed petition.” Indeed,
Judge McCarthy specifically found that all of Cordero’s claims were
fully exhausted and had been adjudicated on the merits. (Docket No.
19 at 5). Thus, Cordero must also be implicitly seeking permission
to amend his petition to add new, unexhausted, and untimely claims.
Courts in this Circuit “have disagreed over whether petitioners
seeking to exhaust new claims may seek a stay under Rhines.”
Martinez v. Mariuscello, No. 16-CV-7933(RJS), 2017 WL 2735576, at
*2

(S.D.N.Y.

June

23,

2017)

(citing

McNeil

v.

Capra,

No. 13-cv-3048(RA)(RLE), 2015 WL 4719697, at *6 (S.D.N.Y. Aug. 7,
2015)). For the purpose of resolving Cordero’s pending application,
the Court assumes without deciding that habeas petitioners may seek
a stay pursuant to Rhines in order to exhaust new claims, not
raised in the original petition. Id.
Turning first to the “good cause” requirement, Petitioner
asserts that (1) his recent discovery of his trial attorney’s
disbarment, (2) the difficulties of conducting pro se litigation as
a layperson and while incarcerated, (3) the refusal of New York
State to provide him with copies of the victim’s medical records
that were submitted to the jury, and (4) his need to complete
exhaustion

proceedings

for

various
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State

court

applications

establish “good cause” so as to satisfy Rhines. (Docket No. at 19,
¶ 45; see also id. at 19-38). As discussed below, none of these
factors, considered singly or in tandem, constitute “good cause.”
Neither

the

Supreme

Court

nor

the

Second

Circuit

has

articulated a standard for determining what constitutes “good
cause” in the context of applications to stay habeas petitions. In
Rhines, however, the Supreme Court expressly linked “good cause” to
a petitioner’s “failure to exhaust.” 544 U.S. at 277 (emphasis
added); see also id. (“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.”) (emphases supplied).
This comports with the Rhines court’s emphasis on limiting the
availability of stays in order to avoid frustrating AEDPA’s dual
purposes of promoting finality and encouraging petitioners to seek
relief from state courts. Id. at 276–77; see also Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (“We must interpret
whether a petitioner has ‘good cause’ for a failure to exhaust in
light of

the

district

court

Supreme
should

circumstances.’”)

Court’s
only

instruction

stay

mixed

in

Rhines

petitions

in

that the
“limited

(citation omitted)).

That said, courts in this Circuit and elsewhere have taken
differing approaches to defining good cause. Some courts analogize
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“good

cause”

to

the

“cause”

required

to

permits

review

of

procedurally defaulted claims, stating that “good cause” “must
arise from an objective factor external to the petitioner which
cannot fairly be attributed to him or her.” Ramdeo v. Phillips,
No. 04–CV–1157(SLT), 2006 WL 297462 at *5–6 (E.D.N.Y. Feb. 8, 2006)
(quotation
No.

marks

omitted);

09–CV–3710(SLT)(LB),

2011

see
WL

also

Nieves

2837428,

at

v.

*2–3

Conway,
(E.D.N.Y.

July 14, 2011) (collecting cases). Other courts have relied on the
Supreme

Court's

“reasonable

confusion”

language

in

Pace

v.

DiGuglielmo, 544 U.S. 408 (2005),1 decided less than a month after
Rhines, suggesting that “good cause” not need be based on something
external to the petitioner and that a more flexible inquiry is
permitted. See, e.g., Whitley v. Ercole, 509 F. Supp.2d 410,
417–419 (S.D.N.Y. 2007) & id. at 420 (finding that State appellate
court’s alternative holdings by which “[a] trained lawyer easily
could be confused” could have caused petitioner to believe his
claims had already been addressed on the merits)). The Court need
not choose between these two standards, as Cordero has not met
1

The Pace court stated in dicta that a “petitioner’s reasonable confusion
about whether a state filing would be timely will ordinarily constitute ‘good
cause’ for him to file in federal court.” 544 U.S. at 416. Pace did not involve
a stay-and-abeyance or whether the petitioner had “good cause” for his failure
to exhaust. Rather, the Pace court’s reference to “good cause” occurred in its
rebuttal of the argument that a petitioner trying in good faith to exhaust state
remedies may litigate in state court for years only to find out at the end that
the applications were never “properly filed” within the meaning of 28 U.S.C. §
2244(d)(2). The Supreme Court noted that a petitioner “might avoid this
predicament . . . by filing a ‘protective’ petition in federal court and asking
the federal court to stay and abey the federal habeas proceedings until state
remedies are exhausted.” Pace, 544 U.S. at 416.

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either. As discussed below, Cordero has not demonstrated any
external factors or “reasonable confusion” responsible for his
failure to exhaust his claims.
The Court turns first to Cordero’s discovery that his defense
attorney (“Trial Counsel”) was disbarred in March of 2017. Cordero
notes that Trial Counsel’s objectionable conduct occurred during
2009 to 2012, affected his “entire client base” of which Cordero is
a “de facto member.” (Docket No. at 20, ¶ 48). According to
Cordero, this “created a set of facts supporting a constitutional
claim” of ineffective assistance of trial counsel. (Id.). The Court
finds that these allegations actually pertain to Cordero’s argument
urging a later start-date for the one-year statute of limitations
under 28 U.S.C. § 2244(d)(1)(D);2 they are not directly relevant to
evaluating good cause for the failure to exhaust.
In

any

event,

Cordero’s

discovery

of

Trial

Counsel’s

disbarment did not “create[] a set of facts” supporting a colorable
claim

that

Trial

Counsel’s

performance

years

earlier

was

constitutionally deficient. Cordero asserts that “consistent with”
the

“conduct

uncovered”

in

the

course

of

the

disbarment

proceedings, Trial Counsel “told [him] to lie” on the stand at
trial, “script[ed] [his] responses” to cross-examination, failed to

2

“A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court”
and “shall run from the latest of” several events, one of which is “the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

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consult a private investigator, failed to obtain an independent
medical expert, “misrepresented facts to [Cordero’s] father,” and
was

reprimanded

by

the

trial

judge

for

his

“propensity

for

fabrication and disregard for courtroom. . . .” (Id. at 20-21,
¶¶ 49-50). Cordero clearly cannot avail himself of 28 U.S.C. §
2244(d)(1)(D) because he had personal knowledge of all of Trial
Counsel’s alleged errors and misdeeds at the time of trial. “The
‘newly discovered evidence’ AEDPA limitations period ‘runs from the
date a petitioner is on notice of the facts which would support a
claim, not from the date on which the petitioner has in his
possession evidence to support his claim.’” Williams v. Phillips,
No. 04 CIV.4653 DAB AJP, 2005 WL 1806161, at *9 (S.D.N.Y. Aug. 2,
2005) (quoting Youngblood v. Greiner, 97 Civ. 3289, 1998 WL 720681
at *4 n. 4 (S.D.N.Y. Oct. 13, 1998); citations omitted). Cordero
cannot plausibly claim to have “good cause” for failing to exhaust
his claims of ineffective of trial counsel sooner, where all of the
facts necessary to raise such claims were in his possession at the
time of his trial. See Hector v. Greiner, No. 99 CV 7863, 2000 WL
1240010

at

*1

(E.D.N.Y.

Aug.

29,

2000)

(“[N]ewly

discovered

evidence is, by definition, incapable of discovery through . . .
due diligence before or during trial. Evidence in existence at an
earlier date, though perhaps unknown to a petitioner, cannot later
be described as newly discovered.”). “Section 2244(d)(1)(D) does
not convey a statutory right to an extended delay, . . . while a

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habeas petitioner gathers every possible scrap of evidence that
might . . . support his claim.” Flanagan v. Johnson, 154 F.3d 196,
198-99 (5th Cir. 1998); see also Tineo v. Strack, No. CV 98-834,
1998 WL 938950, at *3 (E.D.N.Y. Nov. 12, 1998) (petitioner’s “newly
discovered evidence” period began to run at trial when petitioner
first knew that the “the videotape was not . . . accurately
transcribed,” not when he had the videotape re-transcribed eight
years after his conviction).
Cordero’s second example of “good cause”—his status as a
prisoner who is unschooled in the law—does not suffice. Given that
“most habeas petitions are brought pro se, if an ‘inadvertent
failure’ based on ‘ignorance of the law’ were enough to demonstrate
reasonable confusion, the Rhines cause requirement would cease to
exist.” McCrae v. Artus, No. 10-CV-2988 RRM, 2012 WL 3800840, at
*10

(E.D.N.Y.

Sept.

2,

2012)

(citing

Ramdeo

v.

Phillips,

No. 04–CV–1157(SLT), 2006 WL 297462 at *7 (E.D.N.Y. Feb. 8, 2006)
(finding that “an inadvertent, good faith omission standard would
drive an enormous hole through Rhines and [ ] AEDPA”) (quotation
marks

omitted

in

original));

Garcia

v.

Laclair,

No.

06–CV–10196(SES)(DF), 2008 WL 801278, at *4 (S.D.N.Y. Mar. 24,
2008) (“A lack of knowledge of legal procedures, in itself, is
insufficient to find ‘good cause.’”)).
The third reason cited by Cordero—his difficulty in obtaining
certain records from the State—arguably is “an objective factor
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external to the petitioner which cannot fairly be attributed to
him. . . .” Ramdeo, 2006 WL 297462 at *5–6 (quotation marks
omitted). However, the Court finds that it does not constitute
“good cause” under the circumstances of this case. Cordero noted in
his December 2017 stay application that he was waiting for the Erie
County Court to rule on whether the Erie County District Attorney
must release the victim’s medical records to him. (Docket No. at
23, ¶ 57). Cordero avers that he needs these records in order to
have them

examined by an expert. (Id.). Cordero claims that he

“discovered,” at an unspecified time, that the jury made a request
to view the victim’s medical records, which was granted. (Id. at
7). Again, Cordero has not explained why, apart from the fact that
he is pro se and unschooled in the law, he was unable to begin the
process of obtaining the medical records sooner than March of 2017.
(Id. at 7-8). Cordero was present in the courtroom at the time the
jury’s note (Court Exhibit 4) was read by the trial judge. (Trial
Transcript (“Tr.”) at 832). Cordero also was present for the
colloquy among the prosecutor, the trial judge, and Trial Counsel,
about which trial exhibits should be provided to the jury. (Id. at
832-35).3 Cordero claims that it was not until he began attending
a “pseudo ‘prison law school’” that he was able to discover the

3

The Court notes that Trial Counsel successfully objected to the
prosecutor’s attempt to include the attending physician’s annotated diagram of
the victim’s injuries, arguing that it was beyond the scope of the jury’s
request. (Tr. at 833).

-10-

facts

about

the

jury’s

note

and

Trial

Counsel’s

disbarment.

However, “[t]he Court has found no cases supporting the proposition
that a petitioner’s ignorance of the law constitutes ‘good cause’
for the failure to exhaust.” Craft v. Kirkpatrick, No. 10-CV-6049
MAT, 2011 WL 2622402, at *10 (W.D.N.Y. July 5, 2011) (finding “good
cause” not shown where petitioner stated that “he was just recently
informed by his inmate legal assistant that he was prejudiced by
counsels’ performance”).
Turning finally to Cordero’s fourth proffered reason, the
Court

finds

that

his

asserted

need

to

complete

exhaustion

proceedings cannot establish “good cause” for his “failure to
exhaust his claims first in state court[,]” Rhines, 544 U.S. at
277, where, as here, he has not shown “good cause” for failing to
institute these exhaustion proceedings earlier.
In sum, because Cordero cannot demonstrate “good cause,” the
Court finds that it would be an abuse of discretion to grant a stay
in this case. See Craft, 2011 WL 2622402, at *10 (“A lack of ‘good
cause’ is fatal to Petitioner’s motion for a stay.”) (citing
Rhines, 544 U.S. at 277-78).
III. The R&R
When reviewing a magistrate judge’s report and recommendation,
a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
-11-

and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[,]” id.
Where no “specific written objection” is made to portions of the
magistrate judge’s report, the district court may adopt those
portions, “as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.” Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp.2d 224, 226 (S.D.N.Y. 2008)
(citing FED. R. CIV. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149
(1985); other citation omitted). The district court is not required
to review any portion of a magistrate judge’s report that is not
the subject of an objection. Eisenberg, 564 F. Supp.2d at 227
(citing Thomas, 474 U.S. at 149).
As noted above, no objections were made to any portion of the
R&R. Cordero’s assertion that he required a stay-and-abeyance in
order to submit objections is meritless, as discussed above in the
Court’s ruling on the stay application.
The Court has reviewed Judge McCarthy’s thorough and wellreasoned R&R and finds no error. The Court therefor accepts all of
Judge McCarthy’s findings and recommendations.
Accordingly, it is hereby
ORDERED that the Report and Recommendation (Docket No. 16) is
adopted in its entirety; and it is further

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ORDERED that the Petition (Docket No. 1) is dismissed; and it
is further
ORDERED that no certificate of appealability shall issue; and
it is further
ORDERED that Petitioner’s Affidavit in Support of Stay and
Abeyance and Motion to Appoint Counsel, Motion to Amend/Correct
Petition for Writ of Habeas Corpus, Motion for Extension of Time to
Complete

Discovery/Expansion

of

the

Record/Discovery

(Docket

No. 28) is denied with prejudice.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 9, 2018
Rochester, New York

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