Fennell v. McCarthy
- Gregory Woods
- 1:20-cv-03764
- U.S. District Court · Southern District of New York
- 4
In Fennell v. McCarthy, Judge Fox denied a stay because Fennell did not show good cause, potential merit, or that his new claim fit the existing case.
Damique Fennell’s federal habeas petition was not stayed, so the proposed ineffective-assistance-of-appellate-counsel claim was not put on hold for state-court exhaustion under this order.
What happened
In Fennell v. McCarthy, Damique Fennell asked the court to pause his federal challenge to his conviction while he raised an ineffective-assistance-of-appellate-counsel claim in state court. His petition also raised claims about the trial evidence, questioning a witness, jury communications, and a juror’s planned vacation.
The respondent opposed the stay, arguing that Fennell had not explained his delay, shown that the new claims had merit, or shown that they were timely. The respondent also argued that the new claims did not relate to the claims in the original petition.
Judge Fox denied the motion for a stay. The court found that Fennell had not shown good cause for failing to exhaust the proposed claim, explained why it might have merit, shown that it was timely, or shown that it related back to the original petition.
The detailed version
- Fennell v. McCarthy · No. 1:20-cv-03764
- Gregory Woods
- Feb. 8, 2021
Background
Damique Fennell, representing himself, filed a petition under 28 U.S.C. § 2254 challenging his state-court conviction. The petition asserted that the verdict was against the weight of the evidence, that the trial court violated his Sixth Amendment rights by refusing to recall the sole witness against him for further questioning, and that he was denied a fair trial based on the court’s responses to a juror’s question and the jury’s partial-verdict note, as well as the court’s handling of a juror’s statement that the juror would be leaving for vacation.
Fennell later moved to stay the federal petition while he exhausted a proposed ineffective-assistance-of-appellate-counsel claim in state court. The proposed claim concerned several alleged failures by trial counsel, including opening the door to damaging testimony, failing to request a missing-witness instruction, failing to object to prompt-outcry testimony, conduct during summation, and failing to object to the admission of a codefendant’s statement on confrontation-clause grounds.
Legal standard
The court applied the standard for staying a federal habeas petition while unexhausted claims are presented to state courts. Under that standard, a stay is appropriate only if the petitioner shows good cause for not exhausting the claims earlier, that the unexhausted claims are potentially meritorious, and that the petitioner is not intentionally delaying the litigation.
Court’s analysis
The court found that Fennell did not explain what prevented him from presenting his proposed ineffective-assistance-of-appellate-counsel claim in state court after the New York Court of Appeals denied leave to appeal on February 19, 2019. The court therefore found that he had not shown good cause.
The court also found that Fennell did not explain why the proposed claim was potentially meritorious. In addition, the court stated that the proposed claim would be untimely because Fennell had not sought state collateral review or identified another basis for pausing the one-year filing period for federal habeas petitions.
Finally, the court found that Fennell had not explained how the proposed claim related to the claims in his existing petition. The court stated that the proposed claim did not appear to arise from the same core facts as the original claims, as required for the new claim to relate back to the original filing.
Disposition
The court denied Fennell’s motion for a stay, Docket Entry No. 18. The opinion did not decide the merits of the underlying claims in the habeas petition.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.