Carr v. Graham
ORDER denying with prejudice petitioner's 9 Motion to Stay. Signed by Hon. David G. Larimer on 6/16/14. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC D. CARR,
DECISION AND ORDER
- vs HAROLD GRAHAM,
Pro se petitioner Eric D. Carr (“Petitioner”) seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner also has filed a motion to stay the petition (Docket No. 9). For the reasons
set forth below, the motion for a stay is denied with prejudice.
Petitioner was convicted after a jury trial in New York State Supreme Court, Erie County,
of attempted murder in the second degree (N.Y. Penal Law (“P.L.”) §§ 110, 125.25(1), 20.00),
criminal possession of a weapon in the second degree (P.L. § 265.03(2)), criminal possession of a
weapon in the third degree (P.L. § 265.02(4), 20.00), and criminal possession of a weapon in the
fourth degree (P.L. § 265.0 1(2), 20.00). The charges arose from an incident in which Petitioner and
his father and co-defendant, Clarence Carr (“Mr. Carr.”) attacked on an unarmed victim, which
resulted in the victim being struck with a machete and shot several times with a handgun.
Petitioner was sentenced to a determinate term of 25 years plus 5 years of post-release
supervision. On direct appeal, his conviction was unanimously affirmed by the Appellate Division,
Fourth Department, of New York State Supreme Court. People v. Carr, 59 A.D.3d 945(4th Dep’t
2000). The New York Court of Appeals granted leave to appeal, and ultimately affirmed the
conviction. People v. Carr, 14 N.Y3d 808 (2010).
By motion papers dated January 27, 2011, Petitioner moved to vacate his conviction pursuant
to New York Criminal Procedure Law (“C.P.L.”) § 440.10. The trial court (Buscaglia, J.) denied the
motion on August 31, 2011. Petitioner moved for reargument, which was denied on February 7,
2012. The Fourth Department denied leave to appeal on April 2, 2012. Petitioner filed a second
C.P.L. § 440.10 motion on February 22, 2012. Justice Buscaglia denied the motion on August 17,
2012, and the Fourth Department denied leave to appeal on October 17, 2012. Petitioner then filed
a petition for a writ of error coram nobis on June 4, 2012, which the Fourth Department denied on
September 28, 2012. People v. Carr, 98 A.D.3d 1324 (4th Dep’t 2012). The Court of Appeals denied
leave to appeal on July 6,2013. People v. Carr, 21 N.Y.3d 1014 (2013).
This timely habeas petition followed in which Petitioner asserts the following grounds for
relief: (1) he was denied his constitutional right to testify by his trial counsel, who was operating
under a conflict of interest because he also was representing Petitioner’s father, whom counsel
allowed to testify; (2) the prosecution’s evidence on the element of intent was legally insufficient
to satisfy the requirements of due process; (3) the prosecution erroneously failed to disclose the
victim’s criminal record and pending criminal charges; and (4) the trial court abused its discretion
by denying his request for a missing witness charge.
Respondent filed his answer and opposition memorandum of law on November 19, 2013,
arguing that the first claim, based on trial counsel’s alleged failure to allow Petitioner to testify, is
unexhausted but should be deemed exhausted and procedurally defaulted. Respondent also argues
that the missing witness charge is unexhausted because it was raised on direct appeal solely based
on state law, and thus Petitioner failed to fairly present the claim in federal constitutional terms.
Respondent notes that this claim, too, must be deemed exhausted and procedurally defaulted because
Petitioner no longer has any avenues in state court by which to raise it. Respondent argues, in the
alternative, that all of Petitioner’s claims lack merit.
On May 20, 2014, Petitioner filed motion to have the petition stayed and held in abeyance
so that he could return to state court to exhaust certain claims, presumably those as to which
Respondent asserted the defense of non-exhaustion. He also seeks to add several new claims to the
petition: (1) “ineffective assistance of trial counsel” based on unspecified errors; (2) “the court
denied petitioner his right to a fair trial and hindered his defense by denying him an opportunity to
present a justification defense”; and (3) the verdict finding him guilty of multiple counts of criminal
possession of a weapon “was a miscarriage of justice since there was only one gun retrieved and used
in the crime.” Docket No. 9, ¶ 8. Respondent has not filed any papers in opposition to the motion
The Supreme Court stated in Rhines v. Weber, 544 U.S. 269 (2005), that “it likely would be
an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the
petitioner had  good cause for his failure to exhaust,  his unexhausted claims are potentially
meritorious, and  there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics.” 544 U.S. at 278. On the other hand, the Supreme Court explained, even if a
petitioner had “good cause” for the failure to exhaust the claims first, it would be an abuse of
discretion to grant a stay when the claims are “plainly meritless.” Id. at 277 (citing 28 U.S.C. §
Petitioner has not attempted to explain why he failed to exhaust, at an earlier time, either the
unexhausted claims originally raised in his habeas petition or the new claims he wishes to add to his
petition. Thus, he has failed to demonstrate “good cause” for failing to exhaust the claims. The
absence of “good cause” for the failure to exhaust is fatal to Petitioner’ s ability to fulfill the Rhines
standard. See 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.”). E.g., Mills v. Girdich, 614 F. Supp.2d 365, 379-80 (W.D.N.Y. 2009) . The Court
has examined the record, and “good cause” is not present. Accordingly, the Court finds that it would
be an abuse of discretion to grant a stay.
Because the claims Petitioner wishes to add are unexhausted, the Court’s refusal to grant a
stay necessarily means that it would be futile to grant Petitioner’s request to amend the petition, since
he would be adding unexhausted claims on which the Court could not grant habeas relief. See 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.”); see also 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). Therefore, this request also is denied.
For the foregoing reasons, Petitioner’s motion to stay the petition (Docket #9) is denied with
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 16, 2014.
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