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United States District Court Eastern District of New York ------X Charles Spells

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United States District Court Eastern District of New York ------X Charles Spells Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 1 of 14 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------X CHARLES SPELLS, Petitioner, -against- REPORT AND RECOMMENDATION WILLIAM LEE, Superintendent, Green Haven Correctional Facility, 11-CV-1680 (KAM) (JMA) Respondent. --------------------------------------------------------------X A P P E A R A N C E S: Charles Spells 05A3857 Green Haven Correctional Facility PO Box 4000 Stormville, NY 12852-4000 Pro Se Petitioner Victor Barall Kings County District Attorney 350 Jay Street Brooklyn, NY 11201 Attorney for Respondent AZRACK, United States Magistrate Judge: Pro se petitioner Charles Spells (“petitioner”) filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus against William Lee, the superintendent of the correctional facility where he is incarcerated (“respondent”), seeking relief from his conviction and incarceration by New York state authorities. Pet., ECF No. 1. Petitioner has filed a motion to amend his petition to add new claims, and to stay the petition so that he may exhaust his state remedies for the newly added claims. Pet.’s Mot. to Amend and Stay, ECF No. 15. The Honorable Kiyo A. Matsumoto has referred petitioner’s motion to me for a Report and Recommendation. Order Referring Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 2 of 14 PageID #: <pageID> Motion, April 13, 2012. For the reasons explained below, I respectfully recommend that the Court deny petitioner’s motion to amend and stay, and allow petitioner to proceed with the exhausted claims in his original petition. I. BACKGROUND A. Trial and Conviction In 2003, petitioner was charged in Kings County with two counts of murder in the second degree, and one count each of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. N.Y. Penal Law § 125.25; N.Y. Penal Law § 125.20; former N.Y. Penal Law § 265.03; former N.Y. Penal Law § 265.02. Resp.’s Aff. in Opp. to Pet. ¶ 5, ECF No. 3. The charges arose from an incident in April 2003, wherein petitioner, who was carrying a loaded, concealed handgun, approached Jean Frank Guillaume outside an apartment building in Brooklyn. Id. ¶ 4. The two men had a brief discussion that escalated into an argument, and then a physical altercation. Id. Guillame pulled a knife and stabbed petitioner’s back and arm, and petitioner fired three shots at Guillame. Id. Guillame suffered one gunshot wound to the face and two gunshot wounds to the back. He was rushed to the hospital, but died shortly thereafter. Id. At petitioner’s trial, the prosecution introduced evidence from several witnesses, and petitioner testified as the sole defense witness. Id. ¶¶ 6–7. The relevant evidence for the purposes of this opinion is as follows. A resident of the apartment building testified that she heard three gunshots outside her window. Id. ¶¶ 6(a)–(b). The police officers who responded to the scene testified that they found Guillame facedown and breathing on the sidewalk, then accompanied him to the hospital. Id. ¶¶ 6(c)–(d). One of the police officers testified that, while in the emergency room, he happened upon petitioner, who had come to the hospital independently in order to seek medical 2 Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 3 of 14 PageID #: <pageID> treatment for his stab wounds. Id. According to the officer, petitioner said that Guillaume had stabbed him and that he had shot Guillame, then disposed of the gun. Id. Because the doctor who had performed the autopsy on Guillaume was unable to testify at trial, the prosecution called a forensic pathologist to interpret the doctor’s autopsy report. Id. ¶ 6(i). The forensic pathologist testified that the autopsy revealed that Guillame had been shot three times. Id. ¶ 6(j). One shot entered under his right eyelid, and had likely been fired from less than eighteen inches away. Id. The other two shots went into Guillame’s back. Id. The prosecution also presented the testimony of the detectives who inspected the scene, a ballistics expert, and a criminologist. See id. ¶ 6. A nine-inch knife with defendant’s blood on it, which had been recovered from the scene, was also admitted. Id. ¶ 6(h). Petitioner testified that he had approached Guillame in order to purchase marijuana, and that he was armed with a loaded semi-automatic handgun that he needed for protection. Id. ¶ 7(a). He claimed that he and Guillame exchanged words, and that he decided to leave and turned to walk away. Id. ¶ 7(c). As he was walking away, Guillame grabbed him and stabbed him multiple times in the back and bicep. Id. ¶ 7(d). Defendant testified that, in response, he pulled his gun from his back pocket and fired over his left shoulder, shooting “[t]ill the gun stopped firing.” Id. He claimed that he did not see where he fired or what happened to Guillame. Id. On February 16, 2005, the jury found petitioner guilty of Murder in the Second Degree under New York Penal Law § 125.25, and Criminal Possession of a Weapon in the Second Degree under former New York Penal Law § 265.03. Id. ¶ 9; Pet. at 1. On June 1, 2005, the court sentenced petitioner to concurrent terms of twenty years to life on the murder count, and five years on the weapon possession count. Id. 3 Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 4 of 14 PageID #: <pageID> B. Appeals and Post-Conviction Proceedings Petitioner appealed his conviction to the Appellate Division, Second Department, arguing that the prosecution had failed to disprove his justification defense beyond a reasonable doubt, and that the verdict convicting him of murder was against the weight of the evidence. Id. ¶ 11; Pet. at 2. The Second Department affirmed petitioner’s conviction on October 20, 2009. Resp.’s Aff. in Opp. to Pet. ¶ 13; Pet. at 2. The New York Court of Appeals denied petitioner’s application for leave to appeal the Second Department’s decision on December 28, 2009. Resp.’s Aff. in Opp. to Pet. ¶ 14; Pet. at 2. On March 24, 2011, petitioner moved in the Second Department for a writ of error coram nobis1 on the ground of ineffective assistance of appellate counsel. Resp.’s Aff. in Opp. to Pet. ¶ 15. The Second Department denied his motion on October 11, 2011. Resp.’s Aff. in Supp. of Opp. to Mot. to Amend ¶ 6 n.1, ECF No. 16. Petitioner’s application for leave to appeal the denial of that motion is currently pending before the Court of Appeals. Id. C. The Instant Proceedings Petitioner filed his petition under 28 U.S.C. § 2254 for a writ of habeas corpus in this Court on March 24, 2011, claiming that the People failed to disprove his justification defense beyond reasonable doubt, and that the verdict was against the weight of the evidence. Pet. Respondent filed an opposition to the petition on May 24, 2011. Resp.’s Opp. to Pet., ECF No. 3. Respondent argued, inter alia, that the petition should be held in abeyance because petitioner had a writ of error coram nobis pending before the Appellate Division, Second Department. 1 Under New York law, “an appellant is entitled to bring a motion for a writ of error coram nobis, on the ground of ineffective assistance of appellate counsel, in the appellate tribunal which considered the primary appeal in which counsel was allegedly deficient.” People v. Bachert, 69 N.Y.2d 593, 600 (1987). 4 Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 5 of 14 PageID #: <pageID> Respondent argued that if petitioner’s motion were to be found meritorious, petitioner could be granted relief that would render his habeas petition moot. Id. On June 10, 2011, petitioner filed a letter motion to stay and hold his petition in abeyance, “in order to allow [him] to amend [the petition] with the point issues of law and constitutional claims.” Pet.’s Ltr. Mot. to Stay, June 10, 2011, ECF No. 6. On June 23, 2011, Judge Matsumoto denied, without prejudice, petitioner’s motion for a stay as premature because petitioner had not yet actually raised any new claims or shown that they would relate back to the original petition so as not to be time-barred. June 23, 2011, Order (“June 23 Order”). Judge Matsumoto explained that “[i]f petitioner can demonstrate that his proposed new claim relates back to the claims in his petition filed on March 24, 2011, prior to the expiration of the AEDPA statute of limitations, the court will then consider the merits of petitioner’s motion to amend his petition.” Id. at 4. Judge Matsumoto ordered that, if petitioner should choose to file a motion to amend, he should concurrently file a motion to stay the petition in order to exhaust the unexhausted state claims. Id. at 5. The order explained that the applicable legal test for whether a court can grant a request to stay includes the issue of whether a petitioner had good cause for failing to exhaust the claims, and asked that petitioner state when he discovered the factual basis for his new claims. Id. On January 30, 2012, petitioner filed a second motion to amend his petition to add new claims, and to stay his petition so that he could exhaust the state remedies for his newly added 5 Case 1:11-cv-01680-KAM-PK Document 18 Filed 05/23/12 Page 6 of 14 PageID #: <pageID> claims.2 Pet.’s Mot.
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