Brooks v. Sticht
| Decision Date | 20 April 2022 |
| Docket Number | 20-CV-1108 (JLS) |
| Parties | BERNARD BROOKS, JR., Petitioner, v. THOMAS STICHT, Superintendent of the Wyoming Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
DECISION AND ORDER
Pro se petitioner Bernard Brooks, Jr. is in Respondent's custody pursuant to a March 23, 2017 judgment entered against him in New York State, Erie County Court (DiTullio, J.). Brooks was convicted after a jury trial of second-degree criminal possession of weapon (N.Y. Penal Law § 265.03(3)) and sentenced to a determinate term of eight years of imprisonment plus five years of post-release supervision. His conviction was affirmed on direct appeal. People v Brooks, 123 N.Y.S.3d 358 (N.Y.App.Div. 2020), lv denied, 151 N.E.Sd 529 (N.Y. 2020).
On May 13, 2020, Brooks filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. 1. Recently, he requested leave to amend the Petition to add several claims Dkts. 11, 15, and to have the proceeding stayed and held in abeyance while he completes exhaustion proceedings. Dkts. 10 15. For the following reasons, the Court GRANTS leave to amend; DENIES the request for a stay; and DISMISSES this proceeding without prejudice for failure to exhaust, with leave to re-file once exhaustion proceedings are complete.
I. THE ORIGINAL PETITION
In the original Petition, Brooks raised the following claims: (1) the trial court violated his right to a fair trial by declining to dismiss a distracted and inattentive juror (Ground One); (2) the prosecutor's summation comments violated his right to a fair trial (Ground Two); (3) trial counsel was ineffective for failing to object to the prosecutor's improper summation comments (Ground Three); and (4) the sentence was harsh and excessive (Ground Four). Dkt. 1 at ¶ 12.
In his Response, Respondent did not raise the defense of non-exhaustion, but argued that Grounds One and Two are subject to an unexcused procedural default because the intermediate appellate court relied upon an adequate and independent state ground as a basis to dismiss them on direct appeal. Dkt. 5 at 5-6, 9.[1]Respondent further contended that all four grounds are meritless. Id. at 3-15.
After obtaining an extension of time to file a reply brief, Brooks instead filed a Motion to Stay to raise and exhaust “unresolved issues” of “constitutional dimensions” in state court. Dkt. 8 at 2, 3. Due to the application's lack of clarity, the Court denied the motion without prejudice in a Decision and Order entered January 27, 2021, Dkt. 9, and instructed Brooks to file a renewed motion addressing whether he meets the stay requirements under Rhines v. Weber, 544 U.S. 269 (2005), and whether the proposed new claims “relate back” to the original claims under Mayle v. Felix, 545 U.S. 644, 650 (2005). In addition, the Court directed Brooks to file a motion to amend the Petition to add the new claims, along with a proposed amended petition.
III. THE RENEWED MOTION TO STAY AND AMENDED PETITION
On February 23, 2021, Brooks responded to the Court's previous order by filing a renewed Motion to Stay, Dkt. 10, and a proposed Amended Petition. Dkt. 11. Brooks reasserted the same four claims raised in the original Petition, along with the following four new claims: (1) the verdict was against the weight of the evidence because the trial court allowed perjured testimony from the prosecution's witnesses (Ground Five); (2) the trial court abused its discretion in denying a missing witness charge with regard to the 911 dispatcher and a Buffalo Police Department officer, Patrina Muhammed who, in addition to the two arresting officers who testified at trial, was present at the crime scene (Ground Six); (3) the evidence was legally insufficient to prove the clement of possession beyond a reasonable doubt (Ground Seven); and (4) trial counsel was ineffective for failing to call, as defense witnesses, the 911 dispatcher and Officer Muhammed, as well as “any person(s) involved with the manufacturing and/or modifications of the vehicle” he was driving at the time of the incident (Ground Eight). Id. at 11-15. Brooks indicated that he had filed a pro se application for a writ of error coram nobis in the Appellate Division, Fourth Department, of New York State Supreme Court (“Appellate Division''), raising the same claims listed in Grounds Five through Eight.
Respondent filed an Affidavit in Opposition to the Motion to Stay characterizing the proposed new habeas claims and the claims in the coram nobis petition as follows: (1) appellate counsel was ineffective for failing to challenge, on direct appeal, the weight and legal sufficiency of the evidence and the trial court's denial of a missing witness instruction (i.e., the failure to raise the claims in Grounds Five, Six, and Seven as grounds for reversal of the conviction on direct appeal); and (2) a stand-alone claim of ineffective assistance of trial counsel (“IATC”) for failing to call witnesses (i.e., Ground Eight). Dkt. 12 at 2-3, ¶¶ 9-10, 13, 15.
Respondent argued that the IATC claim in Ground Eight was not being exhausted in the coram nobis application and could only be exhausted via a motion to vacate, filed in the trial court pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10. Respondent further asserted that Brooks was not entitled to a stay because he showed neither that good cause existed for failing to pursue this form of state-court relief nor that the IATC claim was potentially meritorious. Respondent pointed out that appellate counsel did challenge trial counsel's performance-albeit on different grounds-and the Appellate Division held that counsel provided “meaningful representation.” Dkt. 12 at 4, ¶ 17.[2]
Brooks filed a Reply disputing whether Ground Eight should be filed in a C.P.L. § 440.10 motion versus a coram nobis petition. He argued that appellate counsel's errors on direct appeal constituted “good cause” under Rhines for his failure to exhaust his proposed new claims earlier. Dkt. 13.
After reviewing the parties' submissions, the Court was left with some uncertainty as to what claims were being raised in the proposed Amended Petition and the coram nobis proceeding, and whether they were based on the same facts and legal theories. The Court determined that it was unable to analyze the propriety of amending the Petition or issuing a stay-and-abeyance because it lacked sufficient information about both the nature of the proposed new claims and the claims being raised in the coram nobis proceeding. Accordingly, the Court issued a Decision and Order requiring Brooks to: (1) submit a copy of his coram nobis application; and (2) state whether he is raising Grounds Five through Eight in the proposed Amended Petition (a) as stand-alone claims, (b) as Sixth Amendment claims of ineffective assistance of appellate counsel (“IAAC”) based on the failure to raise the claims in Grounds through Eight, or (c) as both. Dkt. 14. The Court indicated that, once it received the information described above, it would rule on the request to amend and Motion to Stay.
IV. PETITIONER'S RESPONSE
On June 7, 2021, Brooks timely filed his response, which was docketed as a “Notice re State Court Documents.” Dkt. 15. It consists of a two-page letter, id. at 1-2, followed by copies of a C.P.L. § 440.10 motion, id. at 3-32, he recently filed in New York Supreme Court, Erie County, and the application for a writ of error coram nobis. Id. at 33-56. In response to the Court's question as to whether he was raising Grounds Five through Eight as stand-alone claims for habeas relief, predicates for an IAAC claim, or both, Brooks states that those grounds “are in fact stand alone issues.” Id. at 2.
In the attached corani nobis application, Brooks asserts that his “right to effective assistance of counsel on direct appeal was violated when appellate counsel omitted significant issues while pursuing issues that were clearly weaker” (Dkt. 15 at 7, ¶ 29), and that “[t]here are at least four issues that appellate counsel could have raised but failed to do: [1] verdict was against the weight of the evidence, [2] evidence was legally insufficient, [3] trial court abused it's [sic] discretion in denying missing witness charge, and [4] defense counsel was ineffective for failing to call witnesses.” Id. at 43, ¶ 36; see also id. at 44-54, ¶¶ 39-58 ().
The “four issues” correspond to Grounds Five through Eight, respectively. The coram nobis application thus appears to assert a claim of IAAC based on the failure to raise the claims in Grounds Five through Eight. See, e.g., Dkt. 15 at 35, ¶ 2 (“The basis of this motion is that I was deprived of my right, under the 5th, 6th, and 14th Amendments of the United States Constitution and Article 1, § 6 of the New York State Constitution, to the effective assistance of counsel upon my direct appeal. . . .”).
In the C.P.L. § 440.10 Motion, Brooks reasserts Ground Eight, along with a host of other alleged errors by trial counsel.[3] Brooks now agrees that the proper venue for raising IATC claims is a motion pursuant to C.P.L. § 440.10. Id. at 1. He also asks for permission to amend the Petition to add the claims asserted in the C.P.L. § 440.10 motion.
V. PETITIONER'S LETTER
In an undated one-page letter to the Court received June 18, 2021, Brooks states that Wyoming County Correctional Facility has unfairly required him to participate in alcohol and substance abuse training. Dkt. 16. The only information in the letter that appears relevant to this proceeding is his statement that “courts in the 4th Department refused [his] coram nobis.”[4]
VI. THE COURT...
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