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discussing whether counsel's performance was deficient where he called two alibi witnesses to the stand who gave conflicting testimony, but declining to find deficiency because record did not indicate why witnesses had conflicting testimony
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95 Civ. 9437 (GEL).
July 13, 2001
Jorge Guttlein, Esq., Aranda Guttlein, New York, NY, for petitioner Alan Newton
Rafael A. Curbelo, Assistant District Attorney, Bronx, NY, (Robert T. Johnson, District Attorney, of Counsel), for respondents Philip Coombe et al.
OPINION AND ORDER
On May 31, 1985, after being convicted by a jury of a particularly brutal rape and related crimes, petitioner Alan Newton was sentenced to a total of thirteen and one-third to forty years' imprisonment, to run consecutively to an additional sentence of three and one-third to ten years imposed on the same day for an unrelated conviction. This petition for habeas corpus was originally filed pro se on November 7, 1995. Upon its reassignment to me on September 15, 2000, it was one of the oldest cases on my docket. After Magistrate Judge Henry B. Pitman issued a thorough Report and Recommendation ("RR"), recommending denial of the petition, petitioner (now with the assistance of counsel) filed additional papers, seeking to amend the petition and present entirely new grounds for relief. Today, with respect to most of the issues presented by the original petition, I adopt Judge Pitman's RR as the opinion of the Court. Petitioner's motion to amend his petition is granted; however, the petition is denied on all grounds, new as well as old. This opinion is written not primarily to address the issues effectively disposed of in Judge Pitman's RR, but rather to detail the unusual procedural history that brings us to this point, and to address the new matters presented in petitioner's motion to amend.
BACKGROUND
This petition was not been handled with expedition. From the date the petition was filed in November 1995, it took nearly five months for the Court to order a response from the state. After duly requesting an extension of time, the state responded on August 15, 1996, and on October 23, 1996, the case was referred to former Magistrate Judge Sharon Grubin for a Report and Recommendation. The case remained pending, without any apparent progress toward decision, until April 30, 1999, when Judge Grubin formally relegated the case to the suspense docket pending the results of state-ordered DNA testing. On October 26, 2000, Judge Pitman, to whom the case had recently been reassigned, having been informed that the state court had ultimately denied a motion based on DNA evidence, ended the stay of proceedings. With commendable promptness, Judge Pitman proceeded to issue a thorough RR, addressing all of petitioner's claims, on November 29, 2000. The RR advised the parties that they had ten days to file written objections to Judge Pitman's conclusions.
From that point, the pattern of delay that had earlier characterized the case resumed. On December 1, 2000, petitioner, representing that he was still pro se and needed additional time to respond to the report, sought a 90-day extension of time to file objections. Four days later, however, the Court received a letter from Jorge Guttlein, Esq., asserting that he indeed represented petitioner, and requesting an extension until January 4, 2000, to file objections. In response to a request from chambers for clarification of the question of representation, Mr. Guttlein assured the Court that he represented petitioner, and the extension to January 4, 2001, was granted.
On December 22, 2000, Mr. Guttlein requested a further extension. On January 2, 2001, the Court extended the time for objections until January 31, stipulating that no further extensions would be granted. Having failed to receive objections by the prescribed date, my chambers again contacted Mr. Guttlein, who stated that he would submit a letter explaining his failure to comply with the deadline. When no such letter had been received by February 14, I personally reminded Mr. Guttlein of the pending matter at a conference in another criminal case in which he appeared.
Finally, on February 21, 2001, nearly three weeks after the extended final deadline for submitting objections, the Court received by fax a letter from Mr. Guttlein apologizing for the "abysmal" manner in which the case had been handled, and attributing the failure to a failed "transition" between attorneys in Mr. Guttlein's office. The letter requested a further extension of forty-five days, for the purpose not only of responding to Judge Pitman's Report, but also of moving to amend the original petition to raise a new issue with respect to the denial of petitioner's motion in state court based on the DNA testing. Meanwhile, Mr. Guttlein still had not filed a formal notice of appearance in the case, and the Court's docket sheet continued to list petitioner as representing himself.
The Court has not received any communications from Mr. Newton pro se since the December 1, 2000, letter requesting an extension of time to file objections. Along with petitioner's motion papers finally submitted on May 2, 2001, the Court received a letter from Mr. Newton, dated April 24, 2001, acknowledging that he is represented by Mr. Guttlein.
In response to these developments, on March 2, 2001, I entered an order directing that petitioner submit any objections to Judge Pitman's Report and Recommendation, and any motion to amend his petition to assert claims relating to his DNA motion, either pro se or through counsel, by April 2, 2001. The order specifically required that any motion to amend the petition include briefing on the merits of any issue sought to be raised in the amended petition, and required that any papers submitted either on the motion to amend or in objection to Judge Pitman's Report be accompanied by a formal notice of appearance, and include a signed authorization from petitioner acknowledging his retention of counsel. Noting that the prior order extending petitioner's time to respond had stated that further extensions would not be granted, the order nevertheless extended counsel a further opportunity to address the prisoner's case. As stated in that order:
I take court-ordered deadlines seriously. I also take seriously Congress' efforts to end extended and repetitive habeas corpus litigation over state convictions. See Kelly v. Artuz, 2001 WL 88227 (S.D.N.Y. Jan. 31, 2001). Nevertheless, I am reluctant to enter a final order denying relief to a prisoner based on counsel's derelictions. particularly in a case in which petitioner's representation remains unclear, and in which the initial petition, filed pro se. may have omitted a claim based on DNA evidence that potentially relates to actual guilt or innocence and that may only have become ripe after his initial petition was filed.
The order concluded with what counsel apparently regarded as an empty threat:
These deadlines are final. Failure to file objections to Judge Pitman's Report and/or a motion to amend the petition by April 2, 2001, will result in adoption of Judge Pitman's Report and Recommendation as the opinion of the Court, and entry of a judgment denying the petition.
The alert reader will not be surprised to learn that these explicit directives were not complied with. By April 2, 2001, no objections had been received, nor had a notice of appearance been filed by Mr. Guttlein. Instead, two documents were received in chambers. One, styled a "Notice of Motion to Amend the Petition," consisted of a simple notice of motion, seeking permission "to amend the petition for a writ of habeas corpus to include information regarding DNA evidence," and to file objections to Judge Pitman's Report and Recommendation at some unspecified later time. The motion did not include briefing on the merits of the issues intended to be raised in the amended petition, as directed in this Court's order of March 2. For that matter, the motion did not even identify the federal constitutional issues intended to be raised. Moreover, the motion papers did not include adequate proof of service on the state, leading the Clerk's Office to refer the papers to chambers with a recommendation that they be rejected for filing. On April 6, 2001, I followed that recommendation and ordered that the papers be returned to counsel.
The second document received was a letter, apparently faxed to chambers at 3:42 p.m. on April 2, noting that the motion to amend "is frankly not within our normal standards of practice," because a "chaotic" condition had been created in counsel's offices due to the departures of various professional and support staff employees. The letter noted that the case has now been assigned "to our remaining contract attorney, . . . as her top priority." Counsel stated that he "would understand if the Court should desire to impose sanctions," but implored the Court, in the interest of the petitioner, to grant a "final" thirty-day adjournment, after which papers will "be adequately submitted." The letter did not indicate that copies had been sent either to counsel for the state or to Mr. Newton. On April 17, I entered yet another order, granting petitioner's request for yet another "final" extension, directing that papers be filed by May 2, 2001, and ordering Mr. Guttlein to serve a copy of his letter of April 2 on petitioner and on respondent.
Finally, on May 2, 2001, more than five months after the issuance of Judge Pitman's RR, petitioner at long last submitted his papers. The objections to the RR — the pretext on which the petition had been kept alive since November 2000 — consist of a single short paragraph in the cover letter to the motion papers, reading in its entirety:
We object to the recommendation that the petition be denied and that a certificate of appeal not be issued. We did not draft the original petition and we rely on the record below.
(Letter of Jorge Guttlein, Esq., May 2, 2001, at 1.) The papers do, however, include a four-page affirmation in support of the motion to amend, accompanied by extensive exhibits documenting the record of the DNA-related state-court motion. On June 15, 2001, respondents replied to the long-delayed motion, and the case is now ripe for decision.
Whether guilty or innocent of the crimes charged, and regardless of the merits of his petition. Mr. Newton deserves better service than he has received from his counsel. Fortunately, petitioner has not been prejudiced, since the merits of his claims are now before the Court, and, as will be demonstrated below, they do not entitle him to relief. If the petition had been meritorious, however, petitioner at a minimum would have languished in prison for several months while counsel missed deadlines and failed to respond to Court orders, for no professed reason other than administrative incompetence. Worse, the Court would have been justified at several points in this extended process in adjudicating the original petition, relegating petitioner's DNA claims to the procedural obstacles facing a second or successive habeas application. See 28 U.S.C. § 2244(b)(2). Such disregard for the interests of a client — particularly an imprisoned client — is an embarrassment to the bar.
DISCUSSION
A. The Origina1 Petition
In his initial petition for a writ of habeas corpus, petitioner raised five objections to his conviction. Assuming arguendo that the claims are properly before the Court, petitioner's claims that he was denied the right to be present at a portion of his trial, that the trial judge's interested witness instruction was incorrect, that pre-trial identification procedures were unduly suggestive, and that he was erroneously sentenced consecutively for robbery and assault are without merit for the reasons stated in Judge Pitman's Report, and sections I, II, III(C), III(D), III(E) and III(F) of the Report and Recommendation are hereby adopted as the Opinion of the Court with respect to those issues.
Judge Pitman recommended that two of the claims — that petitioner was denied his right to be present at a discussion among the Court and counsel of a juror's indication that he knew a spectator in the courtroom who was a relative of petitioner, and that the trial court erroneously failed to instruct the jury that the complainant was an interested witness — be found to be procedurally barred. Though Judge Pitman's reasoning on these matters is persuasive, I prefer to deal with meritless habeas claims on the merits whenever possible, to avoid any impression that prisoners with potentially meritorious claims are being deprived of their liberty based on procedural technicalities.
The sole issue raised by petitioner that gives any pause at all is his claim that his trial counsel was ineffective. As explained in more detail in Judge Pitman's Report, petitioner claims that counsel was ineffective in failing to prepare petitioner's two alibi witnesses, his girlfriend and her thirteen-year old daughter, to testify, with the result that the daughter testified that petitioner was home watching television with her and her mother on the night of June 23-24, 1984 — when the crime had actually occurred on the night of June 22-23, 1984.
The crime was committed from approximately four to five o'clock on the morning of Saturday, June 23, 1984. The daughter testified that on the afternoon of Saturday, June 23, she went to a movie with Newton, her mother, and other family members. (Tr. 752, 756, 763.) Later that evening she, her mother and Newton watched television from midnight to 2:00 a.m. (Tr. 754.) She then went to bed, and next saw Newton when she awoke at 11:00 am. on Sunday morning (Tr. 755.) Her mother testified to the same trip to the movies, and watching television (identifying the same program from midnight to 2:00 that her daughter has specified), then testified that Newton had slept with her and was present all night, specifically recalling that he had sent her to answer the doorbell at about 3:00 am. (Tr. 775.) She, however, specifically testified that these events took place on Friday afternoon and evening, and into Saturday morning. (Tr. 768-9, 772.) She did, however, misidentify the date of that Friday as June 23. (Tr. 768.)
Newton also testified on his own behalf to the same activities, without any inaccuracies as to the dates (Tr 818-821.)
Despite the inconsistencies of day and date, however, both witnesses testified that they watched the program "New York Hot Tracks" with Newton from about midnight to two o'clock in the morning that weekend. (Tr 754, 772-74.) And it was stipulated that that program was broadcast onSaturday morning, June 23, from 12:30 am. to 2:00 am. (Tr. 847.) On this point, the witnesses were consistent, and the uncontroverted fact that the program in question was shown on Saturday morning permitted the argument that the daughter's testimony, while mistaken as to the day of the week, in fact corroborated rather than contradicted her mother's testimony.
To establish ineffective assistance of counsel, a petitioner must establish both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). On the first prong, it is certainly troubling that the alibi witnesses testified inconsistently. If they did so as a result of poor preparation by defense counsel, that would raise a serious question about counsel's effectiveness. Thorough investigation of the facts, including interviewing any potential witnesses, is a basic requirement of competent attorney performance, and putting a witness on the stand without adequate preparation would fall below a minimum standard of professional practice. See, e.g., Kenley v. Armontrout, 937 F.2d 1298, 1304 (8thCir. 1991) (failure to interview witnesses constitutes grounds for finding inadequate assistance of counsel); ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION 4-4.1 commentary at 183 (3d ed. 1993) ("Failure to make adequate pretrial investigation and preparation may also be grounds for finding ineffective assistance of counsel."); HARRY I. SUBIN, CHESTER L. MIRSKY, IAN S. WEINSTEIN, FEDERAL CRIMINAL PRACTICE: PROSECUTION AND DEFENSE 17.6 (1992)("Once contacted, it is essential to go over the witness's direct testimony in as much detail as time permits, to assure that the witness relates his or her story in as coherent a way as possible."). It may be that counsel, after adequately interviewing the witnesses, could reasonably have decided to forego an effort to correct minor inconsistencies in witnesses' testimony in the belief that such errors would enhance the witnesses' credibility by making their testimony appear spontaneously honest rather than rehearsed. And on this record, if counsel had thoroughly examined the witnesses, and determined that their honest recollections simply could not be reconciled on all points, it may well have been a reasonable strategic decision to call both witnesses and argue that their consistency on one critical point was the heart of the matter, and that their inconsistent recollections as to the date should be disregarded — which is pretty much what counsel argued. (Tr. 859-63.) But no lawyer could make a "strategic" decision not to interview witnesses thoroughly, because such preparation is necessary in order to know whether the testimony they could provide would help or hinder his client's case, and thus is prerequisite to making any strategic decisions at all.
The causes of the confusing testimony, however, are not evident from the record. Petitioner does not offer any affidavit from either witness, or from defense counsel. The record thus contains no evidence of what the witnesses now claim to have been the truth, what they told defense counsel before trial, or how they were interviewed or prepared by counsel. The only evidence in the record concerning how much time counsel spent preparing the witnesses was brought out on cross-examination by the prosecutor, and indicates that counsel met three times with Newton's girlfriend (Tr. 794-95) and spoke with the daughter only for five minutes on the day of the trial (Tr. 760). On this record, the Court cannot conclusively determine whether counsel's conduct was deficient.
Even if an evidentiary hearing revealed that trial counsel had failed to take basic steps to prepare the witnesses, however, petitioner would still have to satisfy Strickland's second prong, by establishing that counsel's deficient performance deprived him of a fair trial. To meet this standard requires a showing that, but for counsel's errors, there is a reasonable probability — "a probability sufficient to undermine confidence in the outcome" — that the result of the trial would have been different. 466 U.S. at 694. This standard petitioner cannot meet.
It is necessary to be clear about the effect of the confusion about dates on the credibility of the witnesses. It is beyond dispute that the daughter's testimony was completely undermined by the fact that she testified about the wrong date. However, her testimony was of little probative value in any event. She at most supported an alibi for petitioner until she went to bed at about two o'clock in the morning, while the crime was committed some two hours later. Thus, any damage to the credibility of the daughter's own testimony could not have made any difference to the outcome of the trial.
A more serious question, however, is whether calling the daughter undermined the alibi testimony of her mother, Newton's girlfriend. Standing on its own, the inaccurate date in the mother's testimony is trivial; the testimony taken as a whole clearly and unequivocally asserted that Newton was with her in bed on the night and morning of the crime. The daughter's testimony, however, cast doubt on her mother's alibi evidence, by providing the prosecution with an argument that the principal alibi witness was simply recalling the wrong night — an opportunity the prosecutor exploited to some extent, noting that the daughter's testimony related to Saturday night and arguing that "Maybe [the witnesses] should have sat down and discussed their testimony before trial. Maybe they should have gotten it together because the alibi just doesn't work." (Tr. 868-69.)
Viewing the trial transcript as a whole, however, I cannot conclude that there is a "reasonable probability" that the result of the trial would have been different if counsel had identified the problem with the daughter's testimony and decided not to call her. The evidence against Newton was extremely strong. The victim selected Newton from a lineup, identifying both his person and his voice, and then repeated the identification in court. (Tr. 378-383.) This identification, moreover, was not based on a quick and isolated criminal act. The victim had at least briefly observed the perpetrator in a lighted bodega before being abducted by him (Tr. 332-33), and the perpetrator had then forced her into a car, where she again observed his face (Tr. 333, 335), and then terrorized her for over an hour, including two acts of forced sexual intercourse and one of oral rape (Tr. 335-45). Moreover, the perpetrator clearly assumed that the victim would be able to identify him, because he completed his brutalization by telling her he would "fix it so you can't identify me," and slashing her eyes with a razor, blinding her in one eye. (Tr 339-40.) This identification was corroborated by another eyewitness identification, by the clerk in the bodega. The clerk was acquainted with the victim and remembered her being in the store at the same time as a man, with whom the clerk observed her getting into a car a few moments later. (Tr. 494-97.) Only five days after the crime, the clerk identified Newton as that man at a properly-conducted lineup, and also identified him in court (Tr. 500-01.)
Newton's girlfriend was his only real alibi witness. Apart from any issues arising from her daughter's testimony, her testimony was weakened both by the bias resulting from her loving relationship with Newton, and by the fact that she was actually asleep at the time of the crime, and thus testified to his presence in part by the inference that he could not have left without disturbing her, and could not have returned to the apartment without her assistance since he didn't have a key (Tr. 776.) The bulk of the prosecutor's summation was devoted to the affirmative evidence in the case (Tr. 866-68, 871-78), and of the two and a half pages addressing the alibi testimony, more than half dealt with the girlfriend's bias, the asserted weakness of her claim that she would have known if Newton left during the night, and the asserted unlikelihood of the witnesses' remembering such mundane activities as she claimed to recall. (Tr. 868, 869-70). Only about a half page deals even inferentially with the inconsistency of date. (Tr. 868-69.) Nor was Newton's girlfriend confronted at any time during extensive cross-examination about the inconsistency with her daughter concerning the day of the events in question. (Tr. 777-805, 810-12.)
The cross-examination of Newton similarly did not touch on any conflict with the daughter's testimony or address the issue of dates. (Tr. 824-33.)
The defense would probably, on balance, have been better off without the daughter's testimony, but a conscientious review of the testimony and arguments does come close to producing a conclusion that without her testimony, there is any reasonable likelihood that the result of the trial would have been different). Since petitioner cannot demonstrate that better preparation of the witnesses would have had a "reasonable probability" of changing the result, his claim of ineffective assistance of counsel must be rejected.
Moreover, because the effect of calling the additional witness was to add to the record evidence that casts some additional doubt on the alibi defense, and petitioner presents no reason at all to believe that that evidence was inaccurate or has since been repudiated by the witness, the episode does nothing to "undermine confidence in the outcome" of the trial. Strickland, 466 U.S. at 694. This is not a case in which defense counsel's errors prevented the presentation of exculpatory evidence or arguments. If defense counsel presented evidence that tactically backfired, nothing about that choice makes it less likely that Newton is guilty of the crimes charged.
B. The Motion to Amend
In addition to the arguments presented in his original pro se petition and addressed in Judge Pitman's RR, Newton, with the assistance of counsel, now seeks to amend his petition to present an additional argument, contending that newly-discovered evidence casts doubt on his guilt. The motion to amend invites a challenging detour through the increasingly thorny procedural obstacles to considering the merits of a prisoner's petition. As in so many cases, however, what might prove dangerous and complex barriers to a meritorious petition merely complicate disposition of a claim that can more easily be rejected on the merits.
The claim Newton now advances is that recent DNA testing of the victim's blood-stained jeans did not disclose any male DNA. According to petitioner, this evidence casts doubt on the victim's testimony that she was raped. The chain of inferences necessary to reach this conclusion is as follows: since the victim testified that after the rape, (1) she could feel the perpetrator's ejaculate running down her legs, and (2) she was unable to find her underwear but only her jeans, then, if her account is accurate, some seminal fluid should have been on the jeans, and male DNA should have been found on them. The absence of such DNA, petitioner argues, thus casts doubt on the victim's account.
The claim sought to be asserted in the motion to amend would face substantial procedural hurdles if it were presented as a separate petition at this late date. Newton's conviction became final in 1989, when the New York Court of Appeals denied leave to appeal the Appellate Division's affirmance of his conviction. Since that was before April 24, 1996, the effective date of the new one-year statute of limitations on federal habeas petitions, 28 U.S.C. § 2244(d), he would have had one year after that date to file a petition. See Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998). If a new petition, rather than a motion to amend, had been filed in April 2001, it would have come much too late. Thus, to have his claim heard, petitioner would need to have addressed when "the factual predicate of the claim . . . presented could have been discovered through the exercise. of due diligence." 28 U.S.C. § 2244(d)(1)(D). Moreover, if the 1995 petition had been dealt with expeditiously, the new arguments now advanced would have represented a second habeas petition, which could not have been entertained unless rigorous procedural and substantive standards were met. Petitioner would have to apply to the Court of Appeals for permission to file his petition before it could be brought to this Court at all, 28 U.S.C. § 2244(b)(3), and even if permission were given, the petition still could not be granted unless Newton could not only that the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, but also the facts presented in the petition would be "sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B).
Pendency of a prior federal habeas corpus petition would not have tolled the running of the limitations period pursuant to 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 121 S.Ct. 2120, 2125 (2001).
The applicability of this exception to this case would present complicated issues. Of course, DNA evidence was not readily available at the time of petitioner's trial, so it is clear that the factual basis of his current claim was not available until some time after that. But this is not enough to make his claim timely. He would still be required to bring his habeas petition within one year of the time when the DNA evidence could have become available with due diligence. But when exactly was that? Moreover, the pendency of state post-conviction applications tolls the one-year limitations period. Petitioner filed DNA-related motions in state court in 1994 and again in 1998, and the record presents questions about whether those motions were pursued diligently and whether the evidence on which petitioner now relies is the same evidence that he originally sought in those motions.
Newton's motion to amend seeks to take advantage of the endless pendency of his 1995 petition to evade these obstacles. Since that petition has not yet been decided, the motion to amend is not literally a second petition, and so need not navigate the shoals of § 2244(b).See Zarvela v. Artuz, No. 99-2757, 2001 WL 671762, at *2 (2d Cir. June 14, 2001) (citations omitted) ("If after filing a habeas petition, with filly exhausted claims, [a petitioner] wishes to present a new claim, he must endeavor to amend a still pending petition . . . because filing the new claim in a second petition will encounter the severe limitations that AEDPA imposes on the filing of a second or successive petition.").
It is less clear whether the motion to amend avoids the perils of the statute of limitations. As the Second Circuit recently pointed out,
[A] habeas petitioner, like any civil litigant, is entitled to amend his petition see 28 U.S.C. § 2242, and an amendment will "relate back" to the date of his original petition if the added claim "arose out of the conduct, transaction or occurrence set forth" originally. Fed.R.Civ.P. 15(c)(2). See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 814-16 (2d Cir. 2000); See also Anthony v. Cambra, 236 F.3d 568, 576-78 (9th Cir. 2000) (permitting amended habeas claim to "relate back" to original petition where petition put defendant on notice of amended claim).Id. at *5. If the amendment relates back to the date of the original 1995 filing, the statute of limitations, which became effective in 1996. has no application. If, on the other hand, the amendment would not relate back, the new claim would have to satisfy the exception to the statute of limitations set forth in § 2244(d)(1)(D) and discussed above.
As the Court pointed out in Fama, "[i]n determining whether the new claim arises out of the same conduct or occurrence [as the original claim], `[t]he pertinent inquiry . . . is whether the original complaint gave the defendant fair notice of the newly alleged claims.'" 235 F.3d at 815 (quoting Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir. 1998). But Fama provides no guidance for conducting this inquiry, since the Court there preferred to "assume arguendo that [the new claim] does relate back to Fama's original petition," id., and to reject the petition on the merits. The Ninth Circuit's decision in Anthony is equally unhelpful, since in that case the state unquestionably had "fair notice" of the claims sought to be added in the proposed amendment, since the identical claims had been included in the original petition in the first place, and were returning as an amendment after having been dismissed from the original petition to allow the petitioner to exhaust his state remedies. 236 F.3d at 576-77. In this case, in contrast, the argument sought to be presented is an entirely different claim from any that was raised in the original petition.
Even if the amendment survives the statute of limitations (either because it relates back or because its factual predicate could not have been discovered with due diligence until within a year of the filing of the claim), respondents argue that the merits still should not be reached, because petitioner failed to exhaust his state remedies with respect to the claim presented. See 28 U.S.C. § 2254(b). On first blush, this requirement might appear to have been satisfied, since petitioner presented exactly the same DNA argument he makes here to the state courts in a petition pursuant to NYCPL § 440.10. However, as respondents point out, the state motion did not present a specifically federal constitutional argument, and can be construed as simply arguing on state-law grounds that his conviction should be vacated on the basis of newly-discovered evidence. (Resp. Mem. at 5-6.)
As discussed below, it is not clear that Newton presents a federal constitutional argument in this Court, either.
If this analysis is correct, then the Court would face yet another series of complex choices. Perhaps, since the amended claim would have to be dismissed anyway for failure to exhaust, permission to amend the petition should be denied. But since the remainder of the petition is ripe for decision, and is to be denied, refusing leave to amend would relegate petitioner, after exhausting his state remedies, to a second petition, which would require resort to the Court of Appeals for permission to file. What if permission to amend were granted? While Supreme Court precedent suggests that the resulting mixture of exhausted and unexhausted claims should then be dismissed in its entirety, Rose v. Lundy, 455 U.S. 509 (1982), the Second Circuit recently instructed in Zarvela that the preferable procedure for dealing with mixed petitions is to dismiss only the exhausted claim and conditionally stay resolution of the remaining claims while petitioner seeks to exhaust his remedies on the unexhausted claim. See 2001 WL 671762, at *5. Of course, fit is not clear that Zarvela applies when the Court faces not a newly-filed mixed petition, but an old petition that is (over)ripe for decision, which petitioner belatedly seeks to amend in order to add an unexhausted claim.
Moreover, if the Court were to conclude that the federal claim could no longer be brought in state court at all (itself a puzzling question: under NYCPL § 440.10(1)(h), a federal constitutional claim can be brought "at any time after the entry of a judgment," but the court has discretion to reject the claim as procedurally defaulted under NYCPL § 440.10(3)(c)), perhaps the federal claim should be dismissed outright on the grounds that the opportunity to present it in the state courts has been procedurally defaulted, unless petitioner could show cause for the default and prejudice flowing therefrom. See Bloomer v. Costello, 2001 WL 62864, at *3-5 (S.D.N.Y. Jan. 24, 2001).
One hopes and trusts that, if petitioner's claim of newly-discovered evidence genuinely cast doubt on his guilt, a path could be found through this procedural morass to accord him relief. In this case, however, the simplest and wisest course is to slice through the tangles in a different direction. Assuming arguendo, as the Court of Appeals did in Fama, that the proposed amendment would relate back to the filing of the original petition, and pretermitting the exhaustion issue, as permitted by 28 U.S.C. § 2254(b)(2) in dealing with meritless petitions, the petition must nevertheless be denied, because petitioner's new claim does not justify habeas relief
As a matter of law, it is not clear that petitioner's new claim presents any genuine issue of federal constitutional law. Petitioner argues simply that newly-discovered evidence casts doubt on the accuracy of the jury's verdict. He does not articulate how such an argument raises a federal claim. Other than a bare reference to the Fourteenth Amendment (Guttlein Aff. ¶ 10), in fact, petitioner makes no reference to federal constitutional law at all. His legal argument relies only on "[t]he New York State standard for newly discovered [evidence] delineated in People v. Reyes, 255 A[pp]. D[iv].2d 261 (1stDep't 1998)" (Guttlein Aff. ¶ 7-8), and on a federal case, United States v. Houle, 490 F.2d 167 (2d Cir. 1973), applying the standard for granting a new trial under the Federal Rules of Criminal Procedure, which have no application to state cases (Guttlein Aff. ¶ 10.) The Supreme Court has ruled, however, that a claim that newly-discovered evidence demonstrates the actual innocence of a state prisoner is not cognizable on federal habeas corpus, because "federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact." Herrera v. Collins, 506 U.S. 390, 400 (1993).
Despite the stark statement of principle in Herrera, however, the Supreme Court in that case nevertheless assumed for the sake of argument that (at least in capital cases) "a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim," 506 U.S. at 417, and proceeded to consider and reject on the merits Herrera's claim to have made such a showing. See also id. at 419 (O'Connor, J., concurring)("the execution of a legally and factually innocent person would be a constitutionally intolerable event").
But even assuming, as I willingly do, that petitioner would have some due process claim if the state courts arbitrarily refused to consider powerful newly-discovered evidence of innocence, on the facts of this case, Newton's claim is totally lacking in merit. Petitioner initially sought to have the physical evidence in his case tested for DNA in an effort to bolster his identity defense, in the express hope that such testing might disclose male DNA other than his. (See Guttlein Aff. Ex. A, Affirmation of Jorge Guttlein, Esq., in support of defendant's motion pursuant to NYCPL § 440.10, July 9, 1998.) Had such evidence been discovered, it might have created a genuine question about the accuracy of the verdict. Petitioner's hope was frustrated when the court-ordered DNA testing produced no useful result. The laboratory report stated that the "only DNA typing obtained was from the blood stain on the inner pocket [of the victim's jeans, and that DNA was] determined to be female. . . . There was no evidence of male DNA." (Guttlein Aff. Ex. A: Letter of Jorge Guttlein, Esq. to Hon. John N. Byrne, Oct. 16, 2000, ¶ 5.) Undaunted, petitioner proceeded to argue that the negative test results nevertheless entitled him to a new trial, now advancing the theory that the absence of the hoped-for male DNA undermined the victim's testimony that the crime had occurred. (Id. ¶ 6.)
Petitioner's new theory was apparently something of an afterthought. The argument is raised for the first time in a letter submitted to the state court nine months after the results of the DNA testing had been reported, in responding (after a lag of four months) to a letter from the state court indicating that, since petitioner had not been heard from for five months after the court had requested his response to the test results, the court regarded the matter as closed. (Guttlein Aff. Ex. A: Guttlein letter of Oct. 16, 2000 at p. 1, and Letter of Mark H. Snyder, Principal Court Attorney, to Jorge Guttlein, Esq.)
The state court promptly rejected this argument, holding that "[f]ailure to find a male DNA sample is an insufficient basis on which to predicate further relief," (Order of Oct. 18, 2000, Curbelo Aff. Ex. 6), and the Appellate Division denied leave to appeal (Order of Jan. 9, 2001, Curbelo Aff. Ex. 7). This ruling, on any standard, was entirely correct. The evidence that a rape had occurred was overwhelming. In addition to the victim's graphic and horrifying testimony, the state presented evidence from a highly-qualified gynecologist who examined the victim after she had been brought to a hospital by police, bleeding and battered. The doctor testified unequivocally that she has performed a vaginal smear and examined it microscopically, observing active sperm, consistent with the victim having had sexual intercourse between four and five o'clock that morning. (Tr. 709-13) She also testified, on the basis of her examination, that the victim's overall condition was "consistent with forcible sex."(Tr. 715). The fact of rape was understandably conceded by the defense at trial (Tr. 852), and the sole issue raised was whether Newton was correctly identified as the perpetrator.
Nor does petitioner's questionable chain of inference cast any real doubt on the victim's testimony. The victim testified that she felt ejaculate running down her legs in response to a question about whether she knew if the rapist ejaculated. (Tr. 344.) She also testified, however, that she subsequently lost consciousness, and put on her jeans only after she recovered some time later. (Tr. 339-40.) Petitioner offers no scientific testimony suggesting that under these circumstances, there is any likelihood at all that any seminal fluid on the victim's legs or genitalia would not have dried by the time she recovered consciousness, or would likely have left a DNA residue detectable in testing conducted more than 15 years after the rape. It cannot conceivably be found that the absence of detectable male DNA in the 1999 tests would probably change the result if a new trial were granted — the New York test under Reyes — much less that this evidence demonstrates actual innocence in a manner that would raise a due process issue in the face of the Supreme Court's holding in Herrera.
Accordingly, since Newton's claim of newly-discovered evidence is without legal or factual merit, the most efficient resolution of the matter before the Court is to grant, the motion to amend, and to decide the issue presented by the amendment on the merits. Since none of Newton's claims warrant granting the writ, the petition will be denied in all respects.
CONCLUSION
For the reasons stated above, the motion to amend the petition is granted, and the petition or habeas corpus is denied in its entirety. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Division of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.