Burton v. Uhler

Background

Duwayne Burton filed a federal petition challenging his custody on September 20, 2018. On May 4, 2020, Magistrate Judge Sarah Netburn recommended that the petition be denied. Before Burton’s objections to that recommendation were due, he moved to stay the petition so he could exhaust an additional state-court claim and amend his petition.

Request for a stay

A stay of a federal habeas petition may allow a petitioner to pursue unexhausted claims in state court. The court stated that the petitioner must show: (1) good cause for failing to exhaust the claims earlier; (2) that the claims may have merit; and (3) that the petitioner is not using the stay to delay the case.

The court found that Burton did not meet these requirements. He gave no explanation for failing to exhaust the additional claim, so he did not show good cause. He described the proposed claim under New York Criminal Procedure Law § 440.10 as meritorious, but provided no supporting facts or details. The court therefore could not evaluate its potential merit. The court also noted that Burton filed the stay request ten days before his objections were due and concluded that the request appeared intended to delay a ruling.

Request to amend

Burton also sought to add a claim under New York Criminal Procedure Law § 60.22. The court said it was unclear whether he had exhausted that claim in state court and noted that, if he had not raised it on direct appeal, the time to do so had expired.

The court held that the proposed claim was untimely under the one-year deadline for federal habeas applications. Although Burton’s original petition was timely, the court concluded that a claim he sought to pursue on August 20, 2020, was not timely. Under Federal Rule of Civil Procedure 15(c), an untimely claim may be added only if it relates back to the original claims, meaning it arises from the same core facts.

Burton’s original claim concerned the trial court’s refusal to allow him to treat one of his witnesses, Dexter Manning, as hostile. The proposed § 60.22 claim concerned the testimony of an unidentified accomplice, apparently one of the government’s witnesses. The court found that the claims did not share a common core of operative facts, so the proposed claim did not relate back.

The court also ruled that a § 60.22 claim was not cognizable in federal habeas review. Federal habeas relief is available for custody that violates the Constitution, federal laws, or treaties. New York’s § 60.22 requires corroboration of accomplice testimony, but the court explained that the federal Constitution does not require corroboration if the testimony is not facially incredible and can establish guilt beyond a reasonable doubt. The court therefore concluded that a claim based only on § 60.22 raised state law, not a federal habeas issue. It added that, even if the claim related back, it would be denied on the merits.

Disposition

The court denied Burton’s request for a stay and abeyance. It also denied leave to amend on the grounds stated in the opinion. The clerk was directed to terminate the motion at ECF No. 30 and mail Burton a copy of the order. The opinion does not state a separate final disposition of the underlying habeas petition beyond referring to the earlier recommendation that it be denied.