McCray v. Griffin

Filing 17

DECISION AND ORDER denying without prejudice 13 Motion to Stay. The Clerk of the Court is directed to send a copy of this Decision and Order to Plaintiff. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 9/28/2021. (HKG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
RICCARDO McCRAY,
Petitioner,

16-CV-694-LJV(HKS)

-vsTHOMAS GRIFFIN,
Respondent.
__________________________________

DECISION AND ORDER
This case was referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1) for all pre-trial matters and to hear and report on dispositive motions. Dkt. No.
16. Petitioner Riccardo McCray (“Petitioner”), an inmate of the New York State
Department of Corrections and Community Supervision, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his
conviction in Erie County Supreme Court on three counts of murder in the first degree
(N.Y. Penal L. § 125.27[1][a][viii]), two counts of attempted murder in the first degree
(N.Y. Penal Law §§ 110.00, 125.27[1][a] [viii]), and one count of criminal possession of
a weapon in the second degree (N.Y. Penal Law § 265.03[3]). Dkt. No. 6, p. 1.

Currently before the Court is Petitioner’s pro se motion to stay or hold in
abeyance his habeas proceeding to allow him to amend his petition to include
unexhausted claims of “ineffective assistance of counsel and prosecutorial misconduct
not appearing in the record.” Dkt. No. 13. Petitioner contends that he was unaware of
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the facts underlying these claims “at the time of trial” and asserts that he planned to
“perfect” his N.Y. C.P.L. § 440 motion, raising these two new claims in the state court.
Dkt. No. 15, p. 2. For the following reasons, Petitioner’s motion (Dkt. No. 13) is
DENIED without prejudice to renew subject to certain conditions.

DISCUSSION
A person seeking habeas relief from his state court conviction in the
federal courts must file his petition within the one-year statute of limitations. 28 U.S.C.
§ 2244(d). Only where “the applicant has exhausted the remedies available in the
courts of the State” may the district court grant an application for writ of habeas corpus.
Rhines v. Weber, 544 U.S. 269, 274 (2005). In other words, a federal habeas petition
challenging a state court conviction must be timely filed and fully exhausted before a
federal court can exercise jurisdiction over the substantive claims raised therein.

In Rhines, the United States Supreme Court clarified how district courts
should handle “mixed” habeas petitions, those that contain both exhausted and
unexhausted claims. Where a petitioner can show that there is “good cause” for his
failure to exhaust his claims in state court and that his “new” claims are not “plainly
meritless,” the district court may stay the habeas proceedings and dismiss, without
prejudice, the unexhausted claims. This allows the petitioner to present to the state
court his “new” claims and then return to the district court to reinstate them. Rhines,
544 U.S. at 277; see also Faden v. Annetts, NO. 05 CIV.1850(DF), 2005 WL 1765714,
at *1 (S.D.N.Y. July 26, 2005).
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Assuming a petitioner complies with the conditions for the stay (by timely
filing exhaustion proceedings and returning to the district court after his exhaustion
proceedings are complete in state court), the district court may, if appropriate, treat the
“new” claims as if they were presented at the time of the original petition for statute of
limitations purposes. See Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir.), cert. denied
sub. nom. Fischer v. Zarvela, 536 U.S. 925 (2001).

An abeyance such as this is only available in habeas proceedings
involving “mixed petitions.” Compare Rhines, 544 U.S. at 277; see also Zarvela, 254
F.3d at 377 (“We conclude that a district judge confronting a mixed petition has
discretion either to dismiss the petition, or to dismiss only the unexhausted claims and
stay the balance of the petition.”); Clancy v. Phillips, 04CV4343KMK, 2005 WL
1560485, at *6 (S.D.N.Y. July 1, 2005) (“Although the Court may, in its discretion, stay a
habeas case while a petitioner pursues state remedies on unexhausted claims, see
Rhines, the Court declines to do so here. The stay-and-abeyance procedure is
available when the Court is confronted by a mixed petition, but no mixed petition is
presented in this case at this time.”) (citation omitted).

The operable petition currently before this Court contains only exhausted
claims, and is therefore, not a “mixed” petition. Dkt. No. 6. The two “new” claims, which
Petitioner loosely characterizes as ineffective assistance of counsel and prosecutorial
misconduct claims, are not included therein. Accordingly, Petitioner must make an
additional showing that the new claims that he seeks to assert “relate back” to the
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claims pled in the original petition, i.e., that the original and amended pleadings “ar[i]se
out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading.” Mayle v. Felix, 545 U.S. 644, 650, 656 (2005) (stating that “[a]n
amended habeas petition … does not relate back (and thereby avoid 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 set forth in the original pleading”).

Petitioner’s motion states in very general terms that his unexhausted
ineffective assistance and prosecutorial misconduct claims “would warrant granting
habeas relief” (Dkt. No. 13, p. 4) and that he was “not made aware of the issues he is
requesting to bring forward” at the “time of trial.” Dkt. No. 16, p. 2. These general
allegations are insufficient to satisfy the good cause and potential merit requirements to
justify an abeyance. In any case, this Court lacks the authority to stay these habeas
proceedings because the operable petition is not a “mixed” one. Unless and until
Petitioner files a motion to amend the petition (along with a proposed second amended
petition) and explains how the unexhausted claims “relate back” to the exhausted
claims, his habeas proceedings cannot be stayed.

Accordingly, Petitioner’s motion for a stay of his habeas proceeding (Dkt.
No. 13) is DENIED WITHOUT PREJUDICE. If Petitioner wishes to pursue amending
his petition and staying these proceedings, he must file a new motion to amend the
petition (with a proposed amended petition) demonstrating how the unexhausted claims
“relate back” to the exhausted ones. Petitioner’s motion to amend should also request a
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stay of the petition in the event the Court were to grant the motion to amend. Petitioner
must set forth good cause justifying his delay in exhausting the claims in state court and
explain how the unexhausted claims are potentially meritorious on federal habeas
review. Upon filing the motion to amend the petition and for a stay of the proceedings,
Respondent will be provided the opportunity to respond.

IT IS HEREBY ORDERED that:

Petitioner’s motion for stay and abeyance (Dkt. No. 13) is DENIED
WITHOUT PREJUDICE; and

FURTHER, if Petitioner wishes to raise these new claims and to seek a
stay of this proceeding pending exhaustion of said claims, he must file with the Court
and serve upon Respondent’s counsel a motion to amend the operative petition within
30-days of receipt of this Order. This motion must address whether the new claim
relates back to the claims pled in the operative petition. Along with the motion to
amend, Petitioner must file a proposed amended petition that asserts both the
exhausted claims already raised in this proceeding and the unexhausted claims
petitioner wishes to add; and

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FURTHER, that Petitioner’s motion must also request to hold his habeas
proceeding in abeyance. In support of this relief, Petitioner must explain why he did not
present these “new” claims to the state court before filing his prior petitions and how
these claims are cognizable and meritorious on federal habeas review;

FURTHER, that within 30-days of receipt of Petitioner’s motion to
amend and motion for a stay, Respondent shall file a response; and

FURTHER, the Clerk of the Court is directed to forward to petitioner with
this Decision and Order a form habeas corpus petition pursuant to 28 U.S.C. § 2254,
instructions for filing an amended petition, and copies of the Amended Petition (Docket
No. 6).

SO ORDERED.

DATED:

Buffalo, New York
September 28, 2021

_s/ H. Kenneth Schroeder ____
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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