Escalera v. Lempke

Filing 15

ORDER denying 14 Motion to Stay. (Copy of Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 7/9/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANGEL ESCALERA,
Petitioner,
-vs-

No. 1:15-CV-00674(MAT)
DECISION AND ORDER

JOHN LEMPKE,
Respondent.

I.

Introduction
This is habeas proceeding pursuant to 28 U.S.C. § 2254,

commenced by pro se petitioner Angel Escalera (“Escalera” or
“Petitioner”). On October 16, 2017, the Court issued a Decision and
Order denying Petitioner’s request for a writ of habeas corpus and
declining to issue a certificate of appealability. Petitioner now
has filed a letter motion (Docket No. 14) seeking to stay the
Court’s October 16, 2017 decision and “to amend and or supplement
the petition by submitting a Sixth Amendment claim involving
ineffective assistance of counsel[,]” based on counsel’s failure to
adequately litigate issues at the suppression hearing and to
properly advise him about pleading guilty. (Id., p. 1 of 3). For
the reasons discussed below, Petitioner’s request is denied.
II.

Discussion
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
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“only in limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277
(2005). 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 be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State”)).
Here, Escalera’s petition was not a “mixed petition.” Rather,
he wishes to amend his petition to add brand-new unexhausted
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

application,

the
the

purpose
Court

of

assumes

resolving
without

Escalera’s
deciding

that

pending
habeas

petitioners may seek a stay pursuant to Rhines in order to exhaust
new claims, not raised in the original petition. Id.
Escalera has not cited Rhines or attempted to make any showing
of the Rhines prerequisites for invoking a stay-and-abeyance.
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Notably, Escalera does not offer any explanation as to why he did
not seek to exhaust his ineffective assistance of trial counsel
claim sooner. Based on his letter application, it is evident that
all of the facts necessary for Escalera to litigate his ineffective
assistance claim were known to him at the time of his trial.
Because Escalera has failed to show good cause for his failure to
exhaust his ineffective assistance of trial counsel claim, it would
be an abuse of this Court’s discretion to issue a stay. E.g., Carr
v. Graham, 27 F. Supp.3d 363, 365 (W.D.N.Y. 2014) (citing Rhines,
544 U.S. at 277 (“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.”)).
Because the claims Escalera wishes to add are unexhausted, the
Court’s refusal to grant a stay necessarily means that it would be
futile to grant his request to amend the petition, since he would
be adding unexhausted claims on which the Court could not grant
habeas relief. Carr, 27 F. Supp.3d at 365 (citing 28 U.S.C.
§ 2254(b)(2); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d
647, 653 n. 6 (2d Cir. 1987) (“A motion to amend should be denied
only for such reasons as ‘undue delay, bad faith, futility of the
amendment. . . .’”) (quotation omitted in original)).

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III. Conclusion
For the foregoing reasons, Petitioner’s request for a stay and
for permission to amend his petition are denied with prejudice.
Because Petitioner has not “made a substantial showing of the
denial of a constitutional right[,]” 28 U.S.C. § 2253(c)(2), no
certificate of appealability shall issue.
SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

July 9, 2018
Rochester, New York.

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