# Murray v. Cunningham

> District Court, E.D. New York · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10303033

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------
CARLTON MURRAY,

Petitioner, MEMORANDUM & ORDER
19-CV-767 (MKB)
v.

ROBERT CUNNINGHAM, Superintendent,
Fishkill Correctional Facility,

Respondent.
--------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Petitioner Carlton Murray, currently incarcerated at Fishkill Correctional Facility, brings
the above-captioned habeas corpus petition pursuant to 28 U.S.C. § 2254, in which he alleges
that he is being held in state custody in violation of his federal constitutional rights. (Pet.,
Docket Entry No. 1.) Petitioner’s claims arise from judgments of conviction after a consolidated
jury trial in the Supreme Court of the State of New York, Queens County, for assault in the
second degree, two counts of criminal possession of a weapon in the second degree, criminal
possession of a weapon in the third degree, intimidating a victim or a witness in the third degree,
and aggravated harassment in the second degree. (Id. at 2); People v. Murray, 63 N.Y.S.3d 82,
83 (N.Y. App. Div. 2017), leave to appeal denied, 30 N.Y.3d 1118 (2018). Currently before the
Court is Petitioner’s request to hold his petition in abeyance so that he may file a motion to
vacate his conviction pursuant to New York Criminal Procedure Law (“CPL”) section 440.10
(“440 Motion”) in state court, and exhaust his unexhausted claims. (Mot. to Stay Habeas Corpus
Proceedings (“Stay Mot.”), Docket Entry No. 5.) For the reasons set forth below, the Court
denies without prejudice Petitioner’s motion to hold his petition in abeyance.
I. Background
On January 12, 2015, the Queens County Supreme Court rendered two judgments against
Petitioner following a consolidated jury trial, convicting him of assault in the second degree, two
counts of criminal possession of a weapon in the second degree, criminal possession of a weapon

in the third degree, intimidating a victim or a witness in the third degree, and aggravated
harassment in the second degree. (Pet. 2); Murray, 63 N.Y.S.3d at 83. Petitioner was sentenced
“to eight years for the second-degree weapons possession charges, and lesser concurrent
sentences for the other crimes.” (Resp’t Mot. for Extension of Time to File Answer (“Resp’t
Mot.”) 1, Docket Entry No. 10; see also Pet. 2.)
Petitioner appealed his conviction to the New York Appellate Division, Second
Department, claiming: (1) the trial court improperly denied his motion to dismiss the indictments
on the ground of deprivation of his right to a speedy trial because the People were not ready for
trial within six months of commencement of the action; (2) ineffective assistance of counsel
because Petitioner’s trial counsel misapprehended the law and failed to review certain evidence

with Petitioner and adequately prepare him to testify at trial; (3) ineffective assistance of counsel
because Petitioner’s trial counsel operated under a conflict; and (4) legally insufficient evidence
to convict Petitioner of intimidating a witness. (Pet. 3); Murray, 63 N.Y.S.3d at 83−84. On
October 18, 2017, the Appellate Division affirmed the conviction, finding that: (1) the People
were ready for trial within six months; (2) there was legally sufficient evidence to establish,
beyond a reasonable doubt, Petitioner’s guilt of intimidating a victim or witness; and (3) the
Appellate Division could not resolve, without reference to matters outside the record, Petitioner’s
ineffective assistance of counsel claim that trial counsel did not review certain evidence with
Petitioner or adequately prepare him to testify, and therefore a 440 Motion proceeding would be
the appropriate method to seek review of the claim. Murray, 63 N.Y.S.3d at 83−84;1 (see also
Pet. 3). Petitioner sought leave to appeal from the New York Court of Appeals, raising the same
grounds as raised before the Appellate Division. (See Pet. 3−4.) The New York Court of

Appeals denied leave to appeal on February 9, 2018. People v. Murray, 30 N.Y.3d 1118 (2018);
(see also Pet. 3−4).
On February 6, 2019, Petitioner filed a timely appeal with the Court, which includes
exhausted and unexhausted claims. (Pet.) Petitioner raises four grounds for federal review: (1)
actual innocence pursuant to newly discovered evidence; (2) ineffective assistance of trial
counsel based on counsel’s failure to call defense witnesses and properly prepare Petitioner for
cross-examination, and for introduction of evidence that was materially refuted by the
prosecution; (3) ineffective assistance of trial counsel because counsel was operating under a
conflict; and (4) legally insufficient evidence to convict Petitioner of intimidating a witness. (Id.

at 6−11.)
Petitioner alleges that he failed to exhaust his actual innocence claim because it involves
“newly discovered evidence supporting Petitioner’s innocence — namely that he did not possess
a gun prior to the altercation” underlying his conviction, and that such a claim “[c]annot be
raised on direct appeal,” and “may only be filed under a post-conviction motion, as the facts
included were not presented to the trial court.” (Id. at 6−7.) Petitioner also alleges that he failed
to exhaust his ineffective assistance of trial counsel claims because the “Appellate Division

1 Although Petitioner contends that on appeal he also asserted a claim of ineffective
assistance of counsel based on trial counsel’s conflict, (Pet. 3), the Appellate Division’s opinion
affirming Petitioner’s conviction makes no reference to such a claim. Because the state court
record has not been filed with the Court as of the time of writing, the Court cannot confirm this
basis for appeal.
refused to hear the claims . . . because they contain facts outside of the record.”2 (See, e.g., id. at
10.) Petitioner requests that the Court hold his petition in abeyance to allow him to return to
state court to exhaust his three unexhausted claims. (See Pet. 6, 16; Stay Mot. (noting that
Petitioner “intends to exhaust his state remedies prior to litigating” claims in federal court).) At

the time of filing his motion to stay on February 11, 2019, Petitioner informed the Court that he
“intend[ed] to file his state motion to vacate . . . within the next [thirty] days.” (Id.)
On March 13, 2019, the New York Office of the Attorney General filed an opposition to
Petitioner’s motion to stay. (Letter in Opp’n to Stay Pet. (“Resp’t Opp’n”), Docket Entry No. 7;
see also Resp’t Mot.)
II. Discussion
a. Standard of review
When a habeas petition is a “mixed” one — that is, one containing both exhausted and
unexhausted claims — a district court has discretion to hold the petition in abeyance to permit a
petitioner to exhaust the unexhausted claims, provided that the “petitioner had good cause for his

failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication
that [he] engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278
(2005).
b. Petitioner has not shown good cause for failure to exhaust his claims
As several district courts in the Second Circuit have noted, “[t]he Supreme Court and the
Second Circuit have yet to define what constitutes ‘good cause’ under Rhines.” Henry v. Lee,

2 Petitioner’s claim that there was legally insufficient evidence to convict him of
intimidating a witness has been exhausted because it was raised before the Appellate Division,
and Petitioner sought leave to appeal on the same claim to the New York Court of Appeals.
Murray, 63 N.Y.S.3d at 84; (Pet. 11).
No. 12-CV-5483, 2013 WL 1909415, at *6 (E.D.N.Y. May 8, 2013); see also Cordero v. Miller,
No. 15-CV-0383, 2018 WL 3342573, at *2 (W.D.N.Y. July 9, 2018), reconsideration
denied, No. 15-CV-0383, 2018 WL 4846272 (W.D.N.Y. Oct. 5, 2018). District courts in this
Circuit have primarily followed two different approaches in determining whether the Rhines

“good cause” requirement has been met. Some courts find “that a petitioner’s showing of
‘reasonable confusion’ constitute[s] good cause for failure to exhaust his claims before filing in
federal court.”3 Whitley v. Ercole, 509 F. Supp. 2d 410, 417–18 (S.D.N.Y. 2007) (collecting
cases) (noting that “[t]his . . . manner of defining ‘good cause’ would allow a petitioner to show
the reasons, subjectively, for the delay in filing his petition”).
Other courts require a more demanding showing — that some external factor give rise to
the petitioner’s failure to exhaust the claims. See, e.g., Ramdeo v. Phillips, No. 04-CV-1157,
2006 WL 297462, at *5 (E.D.N.Y. Feb. 8, 2006) (collecting cases and noting that such “courts
have reasoned that ‘good cause,’ like ‘cause’ in the procedural default context, must arise from
an objective factor external to the petitioner which cannot fairly be attributed to him or her”

(internal quotation marks and citations omitted)); see also Whitley, 509 F. Supp. 2d at 417

3 This interpretation arises from the Supreme Court’s dicta in Pace v. DiGuglielmo, 544
U.S. 408 (2005), a case in which the Court opined that “[a] petitioner’s reasonable confusion
about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file
in federal court.” Pace, 544 U.S. at 416; see also Davis v. Graham, No. 16-CV-0275, 2018 WL
3996424, at *2 (W.D.N.Y. Aug. 21, 2018) (“Some district courts interpret the Supreme Court
dictum in Pace v. DiGuglielmo, 544 U.S. 408 (2005), to suggest that a petitioner’s reasonable
confusion about exhaustion and state filing deadlines constitutes ‘good cause.’” (citation
omitted)); Young v. Great Meadow Corr. Facility Superintendent, No. 16-CV-1420, 2017 WL
480608, at *5–6 (S.D.N.Y. Jan. 10, 2017) (noting that “[s]everal district courts have
interpreted Pace to indicate that ‘good cause’ for an order of stay and abeyance need not be
based on any factor external to petitioner but rather is ‘a broader, more forgiving
concept.’” (quoting McCrae v. Artus, No. 10-CV-2988, 2012 WL 3800840, at *9 (E.D.N.Y.
Sept. 2, 2012)).
(noting that under the more demanding approach, “a ‘good cause’ requirement would look for
some reason, external to [the p]etitioner, to explain [the p]etitioner’s delay in raising the issue of
ineffective representation, from April 18, 2002, when [the] conviction was entered, to November
28, 2006,” when the 440 motion was filed).

Because Petitioner has not presented sufficient information for the Court to make a good
cause determination under either standard, the Court denies his motion.
i. Actual innocence claim
Petitioner states that he failed to exhaust his actual innocence claim4 because it involves
“newly discovered evidence supporting Petitioner’s innocence — namely that he did not possess
a gun prior to the altercation”5 underlying his conviction, and that such a claim “[c]annot be
raised on direct appeal” and “may only be filed under a post-conviction motion, as the facts
included were not presented to the trial court.” (Pet. 6−7.)
Newly discovered evidence can at times serve as good cause for failure to exhaust a

claim. See, e.g., Spurgeon v. Lee, No. 11-CV-00600, 2011 WL 1303315, at *2 (E.D.N.Y. Mar.

4 The Court notes that the Supreme Court has yet to resolve whether a non-capital
prisoner is entitled to habeas relief based on a freestanding claim of actual innocence. See Jones
v. Annucci, 124 F. Supp. 3d 103, 123–24 (N.D.N.Y. 2015) (“[T]he Supreme Court has not
resolved whether a non-capital prisoner may be entitled to habeas relief based on a freestanding
claim of actual innocence.” (citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); House v.
Bell, 547 U.S. 518, 554–55 (2006); Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 71–72
(2009))); Cole v. Walsh, No. 05-CV-736, 2009 WL 3124771, at *4–6 (E.D.N.Y. Sept. 29, 2009)
(“Courts have yet to precisely resolve the question of whether a freestanding claim
of actual innocence may serve as a basis of habeas relief.”). Because the Court denies the
motion to stay for failure to show good cause under Rhines, and because neither party has raised
the issue to the Court, the Court declines, at this time, to consider whether it may address
Petitioner’s actual innocence claim in the manner presented to the Court.

5 According to the Appellate Division’s opinion, Petitioner’s “convictions were based, in
part, on evidence that the defendant pulled a gun on his nephew, who was shot multiple times
during an ensuing struggle for the gun.” Murray, 63 N.Y.S.3d at 83.
31, 2011) (granting stay for petitioner to “exhaust his newly discovered evidence of innocence
claim”); George v. Brewer, No. 19-CV-10483, 2019 WL 1584530, at *3 (E.D. Mich. Apr. 12,
2019) (“The [c]ourt finds that [p]etitioner’s assertion that the claims are based
upon newly discovered evidence is sufficient to show good cause for failing previously to

present these claims.”); Zornes v. Smith, No. 16-CV-1730, 2016 WL 6650852, at *4 (D. Minn.
Oct. 17, 2016), report and recommendation adopted, 2016 WL 6637697 (D. Minn. Nov. 8,
2016) (“[W]here new evidence . . . not part of the state court record is relevant to an otherwise
exhausted claim, some courts have determined that the appropriate course of action is to stay
the habeas proceeding and hold it in abeyance.” (collecting cases)).
However, the Court is unable to determine from the information provided whether
Petitioner had good cause for failing to previously raise his actual innocence claim in state court.
Petitioner does not explicitly address the issue of good cause, and apart from describing the
newly discovered evidence as “namely that he did not possess a gun prior to the altercation,”
Petitioner provides no further information about the nature of such evidence, including when it

was “discovered,” why he did not possess this evidence during trial, or why he did not file a 440
Motion on the basis of such evidence prior to filing his habeas petition. Without more, Petitioner
cannot meet the Rhines good cause standard. See, e.g., Boykins v. Superintendent Auburn Corr.
Facility, No. 12-CV-548, 2015 WL 3604030, at *4 (W.D.N.Y. June 5, 2015) (finding no good
cause where “[p]etitioner claim[ed] that his newly discovered evidence was just recently secured
and it shows his actual innocence ‘in that petitioner was not the co-defendant/accomplice of the
crime, but a victim of a look-alike misidentification,’ but fail[ed] to state what this newly
discovered evidence is or how it establishes that he was the victim of mis-identification”);
Sherrill v. Dir., TDCJ-CID, No. 15-CV-381, 2018 WL 3327935, at *4 (E.D. Tex. July 5, 2018)
(finding no good cause for failure to exhaust an actual innocence/newly discovered evidence
claim where the petitioner “state[d] that his newly discovered evidence is ‘exculpatory’ and ‘of
constitutional magnitude,’” but did not provide any specifics about his claim); Turner v. Chiesa,
No. 12-CV-5224, 2013 WL 2650506, at *3 (D.N.J. June 11, 2013) (denying stay where, although

petitioner claimed that new affidavits from several witnesses could prove his actual innocence,
“[p]etitioner d[id] not disclose to the [c]ourt the names of the witnesses or their purported
affidavits” and petitioner “provide[d] no information as to when [the newly discovered evidence]
was discovered”); see also Zornes, 2016 WL 6650852, at *8 (“Courts have
found good cause applying the Rhines test where unexhausted claims arise out of newly-
discovered evidence, such as expert opinions . . . . However, courts have found that
the good cause standard is not satisfied where the request is unexplained and unsupported.”).6

6 Conversely, courts have granted stay requests in cases where the petitioner provided
detailed information surrounding the newly discovered evidence, including specifics about the
type of evidence and when it was discovered. See, e.g., Hanzlik v. Joseph, No. 17-CV-6577,
2018 WL 2290699, at *1 (S.D.N.Y. May 18, 2018) (granting stay where “petitioner’s counsel
received new evidence in the form of recently unsealed plea minutes from the prosecution’s
central cooperating witness in the case against petitioner”); Haywood v. Griffin, No. 16-CV-
3870, 2017 WL 961739, at *1−2 (S.D.N.Y. Mar. 13, 2017) (finding good cause for failure to
exhaust Brady claim regarding the improper suppression of psychiatric records of a prosecution
witness because petitioner could not have exhausted based on evidence he was not aware of);
Spurgeon, 2011 WL 1303315, at *2 (granting stay regarding newly discovered evidence where
petitioner had provided details as to when information in the form of a new eyewitness was
learned of, and noted that witness would sign an affidavit); Cross v. White, No. 15-CV-00158,
2016 WL 737939, at *7 (W.D. Ky. Feb. 23, 2016) (granting stay regarding newly discovered
evidence for actual innocence claim where petitioner mentioned that the evidence was
discovered after direct appeal and the filing of a motion to vacate in state court); Horning v.
Martel, No. 10-CV-1932, 2011 WL 5921662, at *1 (E.D. Cal. Nov. 28, 2011), report and
recommendation adopted, 2012 WL 163784 (E.D. Cal. Jan. 19, 2012) (granting stay for actual
innocence claim where newly discovered evidence consisting of a letter blaming the murder on
an individual other than petitioner was not discovered until after federal proceedings
commenced); Brown v. Ludwick, No. 09-CV-11655, 2009 WL 5217984, at *2 (E.D. Mich. Dec.
30, 2009) (granting stay regarding newly discovered evidence where petitioner declared that he
previously lacked knowledge of the evidence discovered by a police crime laboratory); Thornton
ii. Ineffective assistance of trial counsel claims
Petitioner states that he failed to exhaust his ineffective assistance of trial counsel claims
because the “Appellate Division refused to hear the claims . . . because they contain facts outside
of the record.” (See, e.g., Pet. 10.) As to Petitioner’s argument before the Appellate Division

“that he was deprived of the effective assistance of counsel because counsel did not review
certain evidence with him and did not adequately prepare him to testify at trial,” on October 18,
2017, the Appellate Division found that “[s]ince the [Petitioner’s] claim . . . [could not] be
resolved without reference to matter outside the record, a CPL 440.10 proceeding would be the
appropriate forum for reviewing the claim in its entirety.” Murray, 63 N.Y.S.3d at 84 (citations
omitted). At the time of filing his motion to stay on February 11, 2019, Petitioner informed the
Court that he “intend[ed] to file his state motion to vacate . . . within the next [thirty] days.” (Id.)
In its March 13, 2019 response, Respondent argued that Petitioner had not shown good
cause for his failure to first exhaust his claims in state court and that “[d]espite the passage of
over a year, [P]etitioner has not filed a motion to vacate judgment, and has not offered any

reason for why he failed to do so.” (Resp’t Opp’n 1.) In Respondent’s July 25, 2019 motion for
an extension of time to file its answer, Respondent wrote:
Even after [R]espondent opposed the motion, counsel offered no
reason why [P]etitioner failed to exhaust his claims before filing the
habeas petition, or allege any facts for [R]espondent or this Court to
determine whether the claims were plainly meritless. The Court of
Appeals denied [P]etitioner’s leave application almost a year and
one-half ago, and more than five months have passed since counsel
asserted that he was filing a motion to vacate judgment “within the
next [thirty] days.” As of this writing, counsel still has not filed a

v. Butler, No. 03-CV-0755, 2007 WL 4463750, at *4 (E.D. Cal. Dec. 17, 2007), report and
recommendation adopted, 2008 WL 343830 (E.D. Cal. Feb. 6, 2008) (granting stay regarding
newly discovered evidence for actual innocence claim where a declaration of an inmate
admitting to the crime for which petitioner was convicted had been sent to petitioner’s co-
defendant).
motion to vacate judgment, and three of the four claims remain
unexhausted.

(Resp’t Mot. 2.)
Petitioner has not filed a reply to Respondent’s opposition and has not explicitly provided
any reasons for why he had not filed a 440 Motion at the time of filing his habeas petition,
despite the Appellate Division’s decision that a 440 Motion was the proper avenue to pursue
such claims. It appears that Petitioner still has not filed his 440 Motion to exhaust his
unexhausted claims.7 Petitioner has therefore not satisfied the Rhines good cause standard for
failure to exhaust these claims. See Young v. Great Meadow Corr. Facility Superintendent, No.
16-CV-1420, 2017 WL 480608, at *6 (S.D.N.Y. Jan. 10, 2017) (denying stay because “[t]o the
extent [petitioner’s] claim for ineffective assistance of trial counsel . . . . arises from matters
outside of the trial court record, petitioner offers no explanation for his failure to file a § 440.10
motion either while his direct appeal was pending, or at any time since . . . [the] New York Court
of Appeals denied him any relief”); Boykins, 2015 WL 3604030, at *4 (denying stay where
“[p]etitioner provides no reason for his failure not to raise this claim as well as his ineffective
assistance claim in state court prior to filing the Amended Petition”); Rodriguez v. Lee, No. 10-
CV-3451, 2011 WL 1362116, at *10 n.3 (S.D.N.Y. Feb. 22, 2011), report and recommendation
adopted, No. 10-CV-3451, 2011 WL 1344599 (S.D.N.Y. Apr. 8, 2011) (noting that the petitioner
“would struggle to demonstrate good cause for staying his petition” where “petitioner was

explicitly notified by his appellate counsel that his claim for ineffective assistance of trial
counsel was based on facts outside the record and would be properly raised in a 440.10 motion”).

7 In addition to Respondent’s July 25, 2019 assertion that Petitioner had yet to file his
440 Motion, a search of the New York State Unified Court System’s Electronic Case Filing
system, https://iapps.courts.state.ny.us/nyscef/CaseSearch, did not return any results to suggest
that Petitioner has filed his 440 Motion.
The Court therefore denies Petitioner’s request without prejudice, and grants Petitioner
thirty (30) days from the date of this Memorandum and Order to file a renewed motion to hold
his petition in abeyance. Petitioner is directed that any renewed motion to stay should address
the Rhines factors. See Milton v. Racette, 91 F. Supp. 3d 454, 456 (W.D.N.Y. 2015) (denying

petitioner’s motion to stay without prejudice and informing petitioner that a renewed stay motion
should address the Rhines factors, “specifically (1) whether there is good cause for Petitioner’s
failure to exhaust his claims prior to bringing his federal habeas petition and (2) whether the
unexhausted claims are plainly meritless”); see also Larweth v. Conway, No. 04-CV-0050, 2007
WL 57780, at *2 (W.D.N.Y. Jan. 5, 2007) (denying motion to stay mixed petition “without
prejudice to re-filing upon a[n] adequate showing pursuant to Rhines, 544 U.S. at 277, that (1)
there is good cause for petitioner’s failure to exhaust the new claims, and (2) that the claim is not
‘plainly meritless’”).
In the alternative, Petitioner may seek to amend his petition to remove the unexhausted
claims, and solely proceed on his exhausted claim. Rhines, 544 U.S. at 278 (“[I]f a petitioner

presents a district court with a mixed petition and the court determines that stay and abeyance is
inappropriate, the court should allow the petitioner to delete the unexhausted claims and to
proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair
the petitioner’s right to obtain federal relief.” (citation omitted)).
III. Conclusion
For the foregoing reasons, the Court denies without prejudice Petitioner’s request to hold
his petition in abeyance. The Court grants Petitioner thirty (30) days from the date of this
Memorandum and Order to file a renewed motion to hold his petition in abeyance, or in the
alternative, to amend his petition to remove his unexhausted claims and proceed on his exhausted
claim. If Petitioner does not file a renewed motion to hold his petition in abeyance or an
amended petition, the Court will presume that Petitioner prefers to have the Court proceed on his
exhausted claim alone, rather than dismiss his entire petition. See Young, 2017 WL 480608, at
*6 (“[T]he Court will presume, unless petitioner expressly indicates otherwise in his reply brief

or other filing, that he would rather withdraw his unexhausted claim than face the dismissal of
his entire petition.”).
Dated: September 10, 2019
Brooklyn, New York

SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303033. Public record. Not legal advice.