Fay v. Annucci

Background

George Fay filed a federal petition challenging his New York convictions for first-degree rape, first-degree criminal sexual act, and first-degree sexual abuse. The text states that he was sentenced on April 17, 2018, to concurrent prison terms of 10 years followed by five years of post-release supervision. The state appellate court affirmed the judgment, and leave to appeal to the New York Court of Appeals was denied.

Fay's federal claim concerned his asserted Sixth Amendment right to present a defense. At trial, his lawyer sought to call Dr. Michael Thorpe, an expert on sleep disorders and the effects of alcohol on sleep and behavior. The proposed testimony concerned whether a person who was intoxicated might engage in physical activity while believing that person was asleep. The trial court excluded the testimony based on inadequate notice and concerns about scientific reliability. The state appellate court upheld that decision, citing untimeliness, inadequate notice, the absence of a scientific basis, and preservation problems concerning the constitutional argument.

Magistrate Judge's Report

The magistrate judge's report and recommendation concluded that Fay's claim was procedurally defaulted because trial counsel had failed to make an adequate record. The report also recommended rejecting the claim on the merits if the procedural default were excused. The opinion text states that the report's analysis relied extensively on trial counsel's failures, including the timing and substance of the expert proffer, the absence of a written application or request for a hearing, and the lack of evidence supporting the proposed testimony.

Requested Stay

Fay asked the district court to hold the federal matter in abeyance, meaning to pause it while he pursued a motion in New York Supreme Court under Criminal Procedure Law § 440.10(1)(h). He argued that the state motion could address the alleged failures of trial counsel and preserve the possibility of federal review. He relied on the rule that a federal court may stay a mixed petition when the petitioner shows good cause, potentially meritorious claims, and no intentional delay, while also acknowledging that the opinion text says his petition was not technically a mixed petition.

Fay also asked that, if the stay request were denied, he be given an additional 20 days to object to the magistrate judge's report.

Action Taken

The order states that the court received Fay's letter application and that the government's response was due May 3, 2023. It further states that, after and depending on resolution of the motion to stay, the court would set deadlines for objections to the report and recommendation. The text provided does not state that Judge Paul G. Engelmayer granted or denied the stay request, ruled on the report, or ruled on the alternative request for additional time.