Sherrod v. Bradt
Filing
24
DECISION AND ORDER that petitioners motion to vacate the stay (doc. 18) is granted. The stay is vacated as to the exhausted claims listed in the amended petition (doc. 9) and the unexhausted claims listed in that petition are reinstated. Respondents motion to dismiss (doc. 15) is denied. The second amended petition (doc. 19)is dismissed. Respondent is directed to file a response to the amended petition (doc 9) by September 21, 2016. Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 6/24/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY SHERROD,
Petitioner,
No. 6:13-CV-06539 (MAT)
DECISION AND ORDER
-vsDALE A. ARTUS, Superintendent,
Respondent.
I.
Introduction
Proceeding pro se, Anthony Sherrod (“petitioner”) seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is being detained in respondent’s custody in violation of his
federal constitutional rights. Petitioner is incarcerated pursuant
to a judgment entered June 16, 1998, in Erie County Court (Tills,
J.), following a jury verdict convicting him of an eleven-count
indictment which included three counts of rape in the first degree
(N.Y. Penal Law § 130.35), three counts of sodomy in the first
degree (former N.Y. Penal Law § 130.50(1)), two counts of robbery
in the second degree (N.Y. Penal Law § 160.10), one count of sex
abuse in the first degree (N.Y. Penal Law § 130.65), one count of
kidnapping in the second degree (N.Y. Penal Law § 135.20), and one
count of unauthorized use of a motor vehicle in the first degree
(N.Y. Penal Law § 165.08).
II.
Factual Background and Procedural History
Petitioner’s conviction arose out of a June 25, 1997 incident
in which he abducted a young woman from a mall parking lot.
Petitioner then tied the victim to a fence and sexually abused her
over a period of approximately five hours, before she was able to
escape. After a jury trial, petitioner was convicted as indicted,
as outlined above. On June 16, 1998, he was sentenced, as a second
felony
offender,
to
an
aggregate
determinate
term
totaling
90 years, which was deemed a determinate term of 50 years pursuant
to N.Y. Penal Law § 70.30(1)(e)(vii).
Petitioner’s direct appeal was not perfected until 2011. His
conviction was unanimously affirmed by the Appellate Division,
Fourth Department, on April 20, 2012. See People v. Sherrod,
82 A.D.3d 1624 (4th Dep’t 2011), lv denied 16 N.Y.3d 889. On
January 17, 2012, petitioner filed a writ of error coram nobis
raising claims of ineffective assistance of appellate counsel. The
Fourth Department denied that application on April 20, 2012. See
People v. Sherrod, 94 A.D.3d 1481 (4th Dep’t 2012), lv denied, 19
N.Y.3d 967. Petitioner then filed a motion to vacate his judgment
of conviction, pursuant to N.Y. Criminal Procedure Law (“CPL”)
§ 440.10, on December 12, 2012. That motion was denied on May 20,
2013,
and
the
Fourth
Department
denied
leave
to
appeal
on
September 11, 2013.
Petitioner filed a first habeas corpus petition on October 1,
2013.
Doc.
misconduct
1.
The
(grounds
petition
one
and
raised
two);
grounds
of
withholding
prosecutorial
of
allegedly
exculpatory evidence from petitioner’s suppression hearing and
2
trial (grounds three and four); ineffective assistance of trial and
appellate counsel (grounds five and seven); and unduly suggestive
identification procedures (ground six).
On November 14, 2013, petitioner moved to stay and amend his
petition by adding unexhausted claims. Doc. 5. On December 23,
2013, the Court denied that motion without prejudice, and directed
petitioner to file a new motion and amended petition including his
exhausted and unexhausted claims. Doc. 8. On January 27, 2014,
petitioner filed his motion to stay and amended petition, which
sought to add unexhausted claims relating to ineffective assistance
of appellate counsel. Docs. 9, 10. On March 26, 2014, this Court
dismissed the unexhausted claims without prejudice and stayed the
exhausted claims. The order instructed petitioner that “[u]pon
completion of the state court proceedings, petitioner shall file a
motion . . . within 30 days to vacate the stay and reinstate the
ineffective
assistance
of
appellate
counsel
claims.
If
this
condition of the stay is not met, this stay may later be vacated
nunc pro tunc as of the date the stay was entered, and the amended
petition may be dismissed if it is still not timely.” Doc. 12 at 34.
On January 8, 2014, prior to filing his motion to stay and
amended petition, petitioner filed a second writ of error coram
nobis raising the unexhausted claims of ineffective assistance of
appellate counsel. That motion was denied on July 3, 2014. See
3
People v. Sherrod, 119 A.D.3d 1387 (4th Dep’t 2014), lv denied
24 N.Y.3d 1005, reconsideration denied 24 N.Y.3d 1088. Petitioner
notified the Court of that denial and the pendency of his leave
application by letter dated September 11, 2014. Doc. 13.
On January 15, 2015, petitioner filed another CPL § 440.10
motion raising claims of prosecutorial misconduct, ineffective
assistance of trial counsel, and alleged perjury by prosecution
witnesses. By letter dated February 26, 2015, petitioner notified
the Court of that filing, and further informed the Court that the
Court of Appeals had denied reconsideration of his coram nobis
application. Doc. 14. The trial court denied petitioner’s § 440.10
motion on June 23, 2015, and leave to appeal was denied on
October 22, 2015.
On March 10, 2015, respondent moved to dismiss the amended
petition
in
its
entirety.
Doc.
15.
Respondent
argues
that
petitioner failed to comply with the Court’s March 26, 2014 order
requiring petitioner to file a motion to vacate the stay and
reinstate his unexhausted claims within 30 days of the claims’
exhaustion in state court.
Thereafter, on March 27, 2015, petitioner filed a motion to
vacate
the
ineffective
stay
and
assistance
reinstate
of
the
appellate
previously
counsel
unexhausted
claims.
Doc.
18.
Simultaneously, petitioner filed a second amended petition, which
included the claims previously stated in his first amended petition
4
of January 27, 2014 (doc. 9), along with an additional – allegedly
unexhausted – claim of ineffective assistance of trial counsel. The
new claim relates to an alleged Brady violation petitioner states
he newly discovered
while his January 8, 2014 coram nobis motion
was pending. Petitioner filed another coram nobis application on
November 12, 2015, in which he raised the ineffective assistance
claim predicated on the alleged Brady violation. See doc. 21-1.
Petitioner’s motion to vacate the stay (doc. 18) requests that the
second amended petition be stayed and held in abeyance until
petitioner’s unexhausted ineffective assistance claim is exhausted.
III. Discussion
Presently before the Court, therefore, are (1) respondent’s
motion to dismiss (doc. 15); (2) petitioner’s motion to vacate the
stay and reinstate his previously unexhausted claims relating to
ineffective
assistance
of
appellate
counsel
(doc.
18);
and
(3) petitioner’s motion to amend his petition and stay a newly
filed amended petition until his new ineffective assistance of
trial counsel claim is exhausted (docs. 18, 19).
A.
Petitioner’s Second Amended Petition
To the extent that petitioner has moved to amend his petition
a second time, and for a stay pending exhaustion of his latest
ineffective assistance of trial counsel claim, that motion is
denied. As the Court advised petitioner in its original order
granting a stay, the grant of a stay is within the district court’s
5
discretion. A stay should be granted when a court finds (1) “good
cause” for petitioner’s failure to exhaust his claims prior to
filing the petition; (2) the unexhausted claims are “potentially
meritorious”; and (3) there is no indication that petitioner
“engaged in intentionally dilatory litigation tactics.” Rhines v.
Weber,
544
U.S.
269,
277-78
(2005).
The
Court
has
reviewed
petitioner’s most recent coram nobis application (doc. 21-1), filed
November
12,
2015,
in
which
he
describes
the
alleged
Brady
violation and ineffective assistance of trial counsel for failure
to raise the issue. Petitioner alleges that he discovered “new”
evidence through a FOIL request made during the pendency of his
prior
coram
nobis
motion,
which
was
filed
January
8,
2014.
According to petitioner, through that FOIL request, he received the
contents
of
the
Buffalo
Police
Department
Evidence
Manual.
Petitioner argues that the forensic chemist who testified in his
1998 trial failed to properly follow the procedures outlined in
that manual.
Petitioner’s claim does not involve any “newly discovered”
evidence, but rather relates entirely to an issue that petitioner
had a full and fair opportunity to litigate at the time of his
trial nearly two decades ago. At the very least, petitioner could
have exhausted
this
claim
before
now. See,
e.g.,
Bradley
v.
LaClair, 599 F. Supp. 2d 395, 406 (W.D.N.Y. 2009) (denying stay,
finding good cause requirement not met where petitioner’s alleged
6
newly discovered evidence was a map which, with “due diligence, .
. . could have [been] obtained [at] an earlier time”). It is thus
apparent to the Court that petitioner has no “good cause” for a
failure to exhaust this claim at an earlier time, and therefore the
threshold
requirement for
Petitioner’s
second
granting
amended
a
petition
stay
(doc.
has
19)
not
been
is
met.
therefore
dismissed.
B.
Respondent’s Motion to Dismiss and Petitioner’s Motion to
Vacate the Stay and Reinstate His Previously Unexhausted
Claim of Ineffective Assistance of Appellate Counsel
The Court now turns to petitioner’s motion to vacate the stay
and reinstate his previously unexhausted claims of ineffective
assistance of appellate counsel (doc. 18), which relate to his
amended petition filed on January 27, 2015 (doc. 9). As discussed
above, shortly before petitioner filed his motion to vacate the
stay, respondent moved to dismiss the petition in its entirety,
arguing that petitioner failed to comply with the terms of the
Court’s March 26, 2014 order granting the stay. Petitioner argues
that he “mistakenly” believed that his actions in updating the
Court
regarding
the
progress
of
his
postjudgment
motions
constituted compliance with the Court’s stay order. See doc. 18 at
9-11.
The postjudgment motion at issue is petitioner’s January 8,
2014 coram nobis application, which raised unexhausted claims of
ineffective assistance of appellate counsel. The Fourth Department
7
denied the application on July 3, 2014. See People v. Sherrod, 119
A.D.3d
1387
(4th
Dep’t
2014),
lv
denied
24
N.Y.3d
1005,
reconsideration denied 24 N.Y.3d 1088. Petitioner did not notify
the Court of the progress of that motion until over two months
later, when by letter dated September 11, 2014 he informed the
Court that his leave application was pending with the Court of
Appeals. Doc. 13. Petitioner next updated the Court on February 26,
2015, and noted that the Court of Appeals had denied leave on
October 7, 2014, and denied reconsideration on December 23, 2014.
Petitioner did not file his motion to vacate the stay until
March 27, 2015, approximately three months after the Court of
Appeals denied reconsideration.
It is thus apparent that petitioner did not strictly comply
with the requirements of the Court’s order granting the stay, which
required
him
to
move
to
vacate
the
stay
within
30
days
of
exhaustion of the ineffective assistance claims. However, that
order left it up to the Court’s discretion whether to vacate the
stay and whether to reinstate previously unexhausted claims. The
Court finds that petitioner substantially complied with its order
by apprising the Court of the progress of his coram nobis motion.
Regarding the amended petition filed January 27, 2014 (doc. 9), the
Court therefore grants petitioner’s motion to vacate the stay and
reinstates
the
previously
unexhausted
assistance of appellate counsel.
8
claims
of
ineffective
For the same reasons, respondent’s motion to dismiss the
petition is denied. The Court notes that, in its motion to dismiss,
respondent also request dismissal of the petition in its entirety
“because on its face, the petition lacks merit as a matter of law.”
Doc. 15 at 5. The Court finds that the motion dismiss the petition
in its entirety on that basis is premature, as respondent has not
yet responded to the substance of the petition. Respondent is
directed to file a response to the amended petition (doc 9) by
September 21, 2016.
CONCLUSION
For the foregoing reasons, petitioner’s motion to vacate the
stay (doc. 18) is granted. The stay is vacated as to the exhausted
claims listed in the amended petition (doc. 9) and the unexhausted
claims listed in that petition are reinstated. Respondent’s motion
to
dismiss
(doc.
15) is
denied.
The
second
amended
petition
(doc. 19)is dismissed. Respondent is directed to file a response to
the amended petition (doc 9) by September 21, 2016.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 24, 2016
Rochester, New York.
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