DiValentino v. Miller

Background

Anthony DiValentino, representing himself in the habeas proceeding, challenged his state-court convictions for attempted assault, witness intimidation, criminal mischief, aggravated criminal contempt, criminal contempt, conspiracy, and criminal solicitation. His federal petition raised seven grounds, including insufficient evidence, prosecutorial misconduct, excessive and allegedly vindictive sentencing, actual innocence, and several claims that trial or appellate counsel provided ineffective assistance.

While the federal case was pending, DiValentino filed a state-court motion under New York Criminal Procedure Law § 440.10. That motion asserted a new ineffective-assistance claim: trial counsel allegedly should have moved to suppress testimony from a jailhouse informant because the informant was acting as a government agent when eliciting incriminating statements. DiValentino asked the federal court to stay, or pause, the habeas case so he could exhaust this claim in state court. He also sought a 180-day extension to file his reply to the respondent’s opposition.

Arguments about a stay

DiValentino argued that he had good cause for not exhausting the new claim earlier because he had been without counsel, had litigated post-conviction matters without a lawyer, and relied partly on evidence outside the trial record. He also argued that the claim was not plainly meritless and that he was not using the state proceeding to cause delay.

The respondent argued that the new claim was the same as, or closely related to, a claim previously presented and rejected, and that state procedural rules might bar it. The respondent also argued that DiValentino had not shown good cause because he had already pursued two prior § 440.10 motions and two coram nobis petitions before filing the federal petition, and because he waited seven months after filing that petition to seek the stay. The court did not decide whether either state procedural bar applied.

Statute of limitations

The court calculated that 232 days of the federal one-year limitations period had run when DiValentino filed his federal petition, leaving 133 days. The state post-conviction proceedings paused the limitations period at various times. The new § 440.10 motion was filed after the one-year period had otherwise run, so any new federal habeas claim based on it could be untimely. The court noted that the claim might potentially be added if it related back to the original petition, but it did not decide whether such an amendment would be allowed.

Court’s analysis

The court discussed the standard from Rhines v. Weber, under which a federal court may stay a habeas petition to permit exhaustion of state claims when the petitioner shows good cause for the failure to exhaust earlier, the unexhausted claims are potentially meritorious, and the petitioner is not using intentional delay tactics.

The court observed that the federal petition was not technically a “mixed petition” because the new ineffective-assistance claim was not included in the original petition. It was therefore unclear whether the Rhines standard applied. The court assumed, without deciding, that a habeas petitioner could seek a stay to exhaust a new claim and then applied the standard for purposes of deciding the motion.

The court found that DiValentino failed to establish good cause. It pointed to his prior state-court litigation and concluded that he had demonstrated an understanding of the need to exhaust claims in state court. The court also noted that he had already raised a related claim concerning counsel’s failure to request a Cardona hearing. It further held that being unrepresented and inexperienced with the law did not establish good cause. Finally, although the new claim relied partly on information outside the trial record, the court reasoned that DiValentino had known his own discussions with trial counsel throughout the history of his challenges and could have raised the issue earlier.

Because DiValentino failed to show good cause, the court did not decide whether the claim was plainly meritless or whether he had engaged in intentional delay.

Disposition

The court DENIED DiValentino’s motion for a stay. It GRANTED in part his motion for an extension of time, providing 90 additional days from the date of the order—until September 6, 2022—to serve and file his reply, rather than the requested 180 days. The court also directed his limited-appearance counsel to provide him with the order and certain electronically available cited cases and to confirm that delivery by June 15, 2022.