Curran v. Keyser

Justin Curran, Petitioner, v. William F. Keyser, Respondent.

19CV4196 (CS)(LMS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 18, 2020

ORDER

Lisa Margaret Smith, U.S.M.J.

On May 6, 2019, Petitioner Justin Curran, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a). Docket # 2 ("Petition").¹ Following a jury trial, Petitioner was convicted of three counts of murder in the second degree, one count of burglary in the first degree, one count of robbery in the first degree, and one count of grand larceny in the fourth degree; he is currently serving an aggregate prison term of 25 years to life. The Petition states four grounds for relief: (1) the prosecution failed to prove its case beyond a reasonable doubt and the verdict was against the weight of the evidence; (2) Petitioner was deprived of the due process right to a fair trial when, over objection, the court allowed in evidence that before the murder, Petitioner allegedly assaulted the mother of his children, even though that was irrelevant and prejudicial; (3) Petitioner was deprived of the due process right to a fair trial when, over objection, the court allowed in a graphic photograph of the victim; and (4) Petitioner wasdeprived of the due process right to a fair trial when, over objection, the court delivered a flight charge and thus invited the jury to infer consciousness of guilt. See id. at 6-13.

Pending before the Court is Petitioner's motion to stay his habeas proceeding and hold it in abeyance while he exhausts a new claim of ineffective assistance of counsel during his trial. See Docket # 21 ("Stay Motion")²; 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State[.]"). On November 15, 2019, Petitioner filed a N.Y. C.P.L. § 440.10 motion, arguing that Petitioner was denied the effective assistance of counsel because his attorney (1) failed to object to the DNA evidence presented in his case obtained through the Forensic Statistical Tool ("FST"), and (2) failed to request a pre-trial Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)³) to determine the reliability of the FST. See Stay Motion.⁴

Respondent argues that Petitioner's unexhausted claim of ineffective assistance of counsel does not qualify for the "limited circumstances" in which a district court may grant a stay and abeyance of a habeas proceeding. Docket # 25 ("Stay Opp'n") ¶ 16 (quoting Rhines v. Weber, 544 U.S. 269, 277 (2005)). Specifically, Respondent argues that (1) Petitioner failed to show good cause for why he failed to raise the claim earlier in state court, and (2) the belated claim has no merit. See id. ¶¶ 9, 16. Petitioner did not file a reply to Respondent's opposition.

For the reasons that follow, Petitioner's motion is denied.

DISCUSSION

Petitioner's new claim for ineffective assistance of counsel is not included in the Petition, and although Petitioner does not state at this point that he wishes to amend the Petition to include the claim, the Court assumes that he would seek to do so once it is fully exhausted. Therefore, the Court considers as a threshold matter whether such amendment would be possible. If it would not, then it would be futile for the Court to grant Petitioner's motion to stay this habeas proceeding for the purpose of exhausting the claim.

I. Petitioner's Additional Claim is Barred by the Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on federal habeas petitions. 28 U.S.C. § 2244(d)(1). Section 2244 provides several possible dates from which the one-year period may begin to run. The applicable date here is when Petitioner's judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). The judgment of conviction was entered against Petitioner on March 12, 2014, in the County Court of Dutchess County. Petitioner appealed the judgment of conviction, and the Appellate Division, Second Department affirmed the conviction on May 25, 2016. People v. Curran, 139 A.D.3d 1085 (2d Dep't 2016). The New York Court of Appeals denied Petitioner's application for leave to appeal on May 16, 2018. People v. Curran, 31 N.Y.3d 1080 (2018). The conviction thus became final for habeas purposes 90 days later, on August 14, 2018, when Petitioner's time to file a petition for writ of certiorari to the U.S. Supreme Court expired. See Sup. Ct. R. 13; Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (judgment becomes final under Section 2244(d)(1)(A) upon "the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or—if theprisoner elects not to file a petition for certiorari—[the expiration of] the time to seek direct review via certiorari"). Consequently, Petitioner had until August 14, 2019, to file his habeas petition.

Petitioner filed the Petition on May 6, 2019, within the one-year limitations period, but he did not raise any claim of ineffective assistance of counsel among the four claims originally listed in the Petition. See Petition at 6-13. At the earliest, Petitioner first mentioned the ineffective assistance of counsel in his Traverse Declaration dated September 2, 2019—nineteen days after the expiration of the limitations period, and he did not seek a stay and abeyance of this proceeding to exhaust that claim until November 15, 2019—an additional 74 days later. Accordingly, the new claim is time-barred.⁵ See 28 U.S.C. § 2244(d)(1).

II. The Claim Does Not Relate Back to The Original Petition

Petitioner could nonetheless amend his Petition once he exhausts the ineffective assistance of counsel claim in his 440.10 Motion, even if the claim is time-barred, if it relates back to the date of the original Petition. See 28 U.S.C. § 2242 (allowing habeas petitions to be amended "as provided in the rules of procedure applicable to civil actions"). "An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). However, an amended habeas petition does not qualify for relation back just because the original petition and the amendedpleading arose from the same trial and conviction. Mayle v. Felix, 545 U.S. 644, 650 (2005). In Mayle, the Supreme Court held that an amended habeas petition cannot escape AEDPA's one-year statute of limitations when it asserts a new ground for relief supported by facts that differ in both time and type from those in the original pleading. Id. See also Kirk v. Burge, 646 F. Supp. 2d 534, 551 (S.D.N.Y. 2009); Reiter v. United States, 371 F. Supp. 2d 417, 423 (S.D.N.Y. 2005).

Here, Petitioner's new claim of ineffective assistance of counsel does not relate back to his original pleading. The Petition alleges four grounds for relief: (1) the prosecution failed to prove its case beyond a reasonable doubt and the verdict was against the weight of the evidence; (2) Petitioner was deprived of the due process right to a fair trial when, over objection, the court allowed in evidence that before the murder, Petitioner allegedly assaulted the mother of his children, even though that was irrelevant and prejudicial; (3) Petitioner was deprived of the due process right to a fair trial when, over objection, the court allowed in a graphic photograph of the victim; and (4) Petitioner was deprived of the due process right to a fair trial when, over objection, the court delivered a flight charge and thus invited the jury to infer consciousness of guilt. See id. at 6-13. Petitioner's ineffective assistance claim does not involve any of these matters. Rather, it alleges that his counsel (1) did not object to the People's DNA expert's testimony regarding the use of the FST method of DNA analysis in his case, and (2) did not request a Frye hearing to establish the validity of that method. See 440.10 Motion ¶¶ 8, 13-16.⁶Nowhere in the Petition did Petitioner raise either an issue regarding the reliability of the scientific methods testified to at trial or an issue with his assistance of counsel. Thus, the facts supporting his ineffective assistance of counsel claim differ in "time and type" from the facts underlying each of the claims in the original Petition. See Kirk, 646 F. Supp. 2d at 551 (denying relation back where ineffective assistance of counsel claim differed in both time and type); Jenkins v. Greene, 646 F. Supp. 2d 615, 621 (S.D.N.Y. 2009) (same), aff'd, 630 F.3d 298 (2d Cir. 2010); Jorge v. Phillips, No. 05-cv-6091 (LAP)(MHD), 2008 WL 344718, at *3 (S.D.N.Y. Jan. 31, 2008)⁷ (same). Because Petitioner cannot amend the Petition to add the new claim, it would be futile to grant Petitioner's motion to stay this habeas proceeding.

III. The Rhines Standard for Granting a Stay Has Not Been Met

Respondent opposes the Stay Motion on the ground that Petitioner has not met the standard for granting a stay as articulated in Rhines v. Weber, 544 U.S. 269 (2005), which applies in the case of a "mixed" petition, i.e., a petition including both exhausted and unexhausted claims. Here, the Petition is not "mixed," as the claim of ineffective assistance of counsel is entirely new, and therefore, it is unclear whether the Rhines standard applies. See Escalera v. Lempke, No. 1:15-CV-00674 (MAT), 2018 WL 3342572, at *1 (W.D.N.Y. July 9, 2018) ("Courts in this Circuit have disagreed over whether petitioners seeking to exhaust new claims may seek a stay under Rhines.") (internal quotation marks and citation omitted). No...