Fennell v. McCarthy

Background

In May 2020, Damique Fennell, representing himself, filed a petition under 28 U.S.C. § 2254 challenging his state-court conviction. His petition raised claims that the verdict was against the weight of the evidence, that the trial court violated his confrontation rights by denying a request to recall a witness, and that the trial court failed to respond properly to several jury communications.

Fennell later moved to stay, or pause, the federal case so he could return to state court and exhaust a proposed claim that his appellate lawyer had been ineffective. The proposed claim was based on alleged failures involving trial counsel’s handling of testimony, a missing-witness instruction, prompt-outcry testimony, summation, and a codefendant’s statement. In his filings, Fennell focused particularly on trial counsel’s questioning of a medical examiner about DNA evidence.

Fennell attributed the delay to limited access to the law library during the COVID-19 pandemic. The respondent opposed the motion, arguing that Fennell had not shown good cause for the delay, that the proposed claims were insufficiently explained and plainly meritless, and that they were time-barred and unrelated to the claims in the original petition.

Legal standard

A federal court may stay a habeas petition containing both exhausted and unexhausted claims while the petitioner returns to state court. Under the governing standard, the petitioner must show good cause for failing to exhaust the claims earlier, that the unexhausted claims may have merit, and that the petitioner was not intentionally delaying the case.

The court also explained that a proposed amendment must relate back to the original pleading. In this context, relation back requires the new claim to arise from the same conduct, transaction, or occurrence described in the original petition. A federal habeas claim is also subject to a one-year limitations period, subject to the statutory rules and the limited possibility of equitable tolling. Equitable tolling requires diligent pursuit of rights and an extraordinary circumstance that caused the late filing.

Court’s reasoning

The court first interpreted Fennell’s motion as requesting both permission to amend the petition to add the unexhausted claim and a stay while he pursued that claim in state court.

The court found that the proposed claim was untimely. Fennell knew the factual basis for the claim when his direct appeal ended, yet he had not filed the claim in state court even by January 2021. The court found that he had not shown that he pursued his rights diligently or that an extraordinary circumstance prevented timely filing. The court also noted that Fennell did not assert that equitable tolling should apply.

The court separately found that the proposed ineffective-assistance claim did not relate back to the original petition. The facts supporting the proposed claim were not the same as the facts underlying Fennell’s claims about the weight of the evidence, the confrontation right, or the trial court’s responses to jury communications. The court therefore found that amendment was not warranted.

Finally, the court held that Fennell had not established good cause for failing to exhaust the proposed claim in state court after the New York Court of Appeals denied leave to appeal. The court stated that, even assuming amendment were appropriate, Fennell had not met the requirements for a stay.

Disposition

The court denied Fennell’s motion to stay the petition. The order did not decide the merits of the original habeas claims in this ruling. The Clerk of Court was directed to mail a copy of the order to Fennell.