Doll v. Chappius
Filing
22
DECISION AND ORDER denying 17 Motion to Amend or Correct; denying 18 Motion to Stay. Signed by Hon. Michael A. Telesca on 4/20/18. (JMC)
NITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SCOTT F. DOLL,
Petitioner,
No. 6:15-cv-06400(MAT)
DECISION AND ORDER
-vsPAUL CHAPPIUS, as Superintendent of
Elmira Correctional Facility,
Respondent.
I.
Introduction
Represented by counsel, Scott F. Doll (“Petitioner”) brought
this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§
2254
alleging
that
he
is
detained
in
Respondent’s
custody
pursuant to an unconstitutional judgment of conviction rendered
July 2, 2010, in New York State, Genesee County Court (Noonan, J.).
Petitioner was convicted, following a jury trial, of one count of
second-degree murder. He is currently serving his sentence on that
conviction.
II.
Procedural History
The Petition was filed on July 1, 2015 (Dkt #1). Respondent
filed
its
opposition
to
the
habeas
petition
on
May
5,
2016
(Dkt ##15, 16). On October 24, 2016, Petitioner filed his First
Motion
to
Amend/Correct
(Dkt
#17)
and
First
Motion
to
Stay
(Dkt #18). Petitioner asserts that, through state post-conviction
proceedings,
certain
items
of
newly
discovered
evidence
were
revealed. First, Petitioner states, he discovered that the medical
examiner’s
office,
despite
having
testified
at
trial
to
the
contrary, failed to take fingernail scrapings (or clippings) from
the victim during the autopsy. According to Petitioner, this
information was only discovered because the clippings were ordered
to be tested for DNA by Genesee County Court; however, in April of
2015, the local law enforcement agency disclosed that the clippings
had not been taken and thus could not be tested. In March of 2016,
Genesee County Court denied a hearing on this issue. Pursuant to
the
same
state
court
DNA
order
that
required
the
victim’s
fingernail clippings be tested, Petitioner discovered, in December
2015, that a third party’s blood was found on top of the left boot
worn by the victim at the time of his demise. However, Petitioner
notes, the prosecution’s theory at trial was that only the victim’s
blood was found at the scene. Petitioner seeks a stay of the
instant federal habeas proceeding while he pursues a motion to
vacate in state court on claims of newly discovered evidence. He
also seeks to amend his habeas petition to add these claims of
newly
discovered
evidence
that
allegedly
prove
his
actual
innocence.
Respondent has opposed (Dkt #20) the motions to amend and to
stay because this Court cannot grant Petitioner habeas relief on
his freestanding claim of actual innocence. Petitioner has not
filed a reply.
-2-
For the reasons set forth below, the Court denies permission
to amend and declines to exercise its discretion to stay this
habeas proceeding.
III. Discussion
A.
Amendment of the Petition
Rule 15 of the Federal Rules of Civil Procedure provides in
relevant part as follows:
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days after
service of a responsive pleading or 21 days
after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely
give leave when justice so requires.
FED. R. CIV. P. 15
Because Respondent has filed its opposition to the habeas
petition, Petitioner’s motion to amend cannot be considered under
the “as of right” standard set forth in Rule 15(a)(1). Rather, the
Court must apply Rule 15(a)(2), under which it may deny a motion to
amend if the proposed amendments are “‘futil[e].’” Ruotolo v. City
of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)).
The
Supreme
Court
has
stated
that
“[c]laims
of
actual
innocence . . . have never been held to state a ground for federal
habeas
relief
absent
an
independent
-3-
constitutional
violation
occurring in the underlying state criminal proceeding.” Herrera v.
Collins, 506 U.S. 390, 400 (1993). In Herrera, the Supreme Court
explained that its habeas jurisprudence “makes clear that a claim
of ‘actual innocence’ is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the
merits.” Id. at 404-05. Because Petitioner’s actual innocence claim
is not a federal constitutional claim cognizable in this § 2254
proceeding, e.g., Glover v. Herbert, 431 F. Supp. 2d 335, 339
(W.D.N.Y. 2006), amendment of the Petition to add it would be
futile. Accordingly, the Court denies the Motion to Amend.
B.
Stay and Abeyance of the Petition
In Rhines v. Weber, 544 U.S. 269, 277 (2005), the Supreme
Court
approved
the
stay-and-abeyance
“limited”
use
procedure.
In
by
district
order
courts
to
of
invoke
the
the
stay-and-abeyance procedure, a district court must ensure that
(1) good cause exists for the petitioner’s failure to exhaust his
claims
in
state
court;
(2)
the
unexhausted
claims
are
not
“potentially meritorious” and (3) the petitioner has not engaged in
intentionally dilatory litigation tactics. 544 U.S. at 277-78.
Here,
as
discussed
above,
the
actual
innocence
claims
that
Petitioner wishes to exhaust if granted a stay are not cognizable
on federal habeas review. Therefore, Petitioner has not shown that
they are potentially meritorious, and it would be an abuse of this
-4-
Court’s discretion to stay the Petition. Petitioner’s Motion to
Stay accordingly is denied.
IV.
Conclusion
For the reasons discussed above, Petitioner’s First Motion to
Amend/Correct (Dkt #17) and First Motion to Stay (Dkt #18) are
denied
with
prejudice.
Because
Petitioner
has
not
made
a
substantial showing of the denial of a constitutional right, a
certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
April 20, 2018
Rochester, New York
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