OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I. Introduction

By notice of motion dated July 19, 2011 (Docket Item 10), petitioner seeks (1) to stay consideration of his habeas corpus petition while he exhausts certain claims in state court, and (2) to amend his petition to add those claims. For the reasons set forth below, the motion is denied in all respects.

II. Facts

A. Facts Giving Rise to Petitioner's Conviction

This proceeding arises out of petitioner's 2007 conviction in the Supreme Court of the State of New York, Bronx County, for murder in the second degree, in violation of New York Penal Law Section 125.25(1). Pursuant to that judgment, petitioner was sentenced to an indeterminate term of imprisonment of 22 years to life. Petitioner is currently incarcerated pursuant to that judgment.

According to the prosecution's brief on direct appeal (Exhibit 2 to the Declaration of Assistant District Attorney Nancy D. Killian, dated Aug. 8, 2011 ("Killian Decl.") (Docket Item 11)), the evidence offered at trial established the following facts. From at least 2000 through 2002, petitioner was romantically involved with and lived with Xiomara Morales; in 2002, they had a child together. Although their romantic relationship ended in 2002, they continued to live together because of the child and petitioner's inability to work as a result of an earlier gunshot wound. They also shared their apartment with six children from their previous relationships.

In 2004, although Morales and petitioner were still sharing an apartment, Morales began dating Domingo Rojas. After Morales and Rojas began dating, Morales asked petitioner to move out, which angered petitioner. In addition, on at least one occasion in 2004, while Morales was speaking with Rojas on the telephone, petitioner brandished a large knife in front of Morales.

In 2005, petitioner and Morales came to an agreement that he would leave Morales' apartment as soon as he was physically able to do so. On April 9, 2005, Rojas accompanied Morales to her apartment, leaving her at the apartment door. After Rojas left, petitioner again brandished a large knife in front of Morales and said "I'm going to kill him." Later that day, Morales spoke to Rojas on the telephone, in petitioner's presence, and arranged to meet him on the corner of the Grand Concourse and Kingsbridge Road. After the call, and while Morales was in the bathroom preparing for her meeting with Rojas, petitioner left the apartment.

At approximately 8:46 that evening, Rojas collapsed on the street and died in the vicinity of the Grand Concourse and Kingsbridge Road. A subsequent autopsy disclosed that a single stab wound to Rojas' neck and severed both his carotid artery and jugular vein. The autopsy also revealed that he had lost a tremendous amount of blood and that both his shirt and jacket were soaked with blood.

Later that evening, petitioner visited the Bronx residence of Alejandro Ruiz, carrying a bag. Petitioner asked Ruiz to keep the bag for him; when Ruiz asked what was in the bag, petitioner told him it contained a knife. Petitioner subsequently asked Ruiz's wife if she had any Clorox. She provided petitioner with a bottle of Clorox which he took into the bathroom. When petitioner left the bathroom, his pants appeared wet, as if he had been trying to clean them.

Thereafter, petitioner returned to Morales' apartment where he was arrested. Subsequent forensic examinations established that Rojas's blood was on petitioner's pants and on the knife he had left with Ruiz. In addition, the prosecution offered evidence that Rojas's fatal injuries were consistent with the knife petitioner left with Ruiz.

Petitioner did not offer any evidence.

B. Prior Proceedings

Petitioner, assisted by counsel, appealed his conviction to the Appellate Division of the New York State Supreme Court, First Department, asserting two claims: (1) that the Trial Court should have charged the jury on the partial defense of extreme emotional disturbance and (2) that the sentence was excessive (Killian Decl., Ex. 1 at i). The Appellate Division rejected both claims and affirmed petitioner's conviction on November 20, 2008. People v. Acevedo, 56 A.D.3d 341, 867 N.Y.S.2d 430 (1st Dep't 2008). The New York Court of Appeals denied leave to appeal on April 20, 2009. People v. Acvedo, 12 N.Y.3d 813, 908 N.E.2d 929, 881 N.Y.S.2d 21 (2009).

On July 12, 2010, the Clerk of the Court docketed petitioner's habeas corpus petition1 (Docket Item 1). The petition appears to assert the same claims petitioner asserted on direct appeal.

In October, 2010, petitioner, proceeding pro se, filed a petition for a writ of error coram nobis with the Appellate Division for the First Department, claiming that his appellate counsel had been ineffective for failing to argue that (1) petitioner was denied Due Process because he was handcuffed during jury selection and trial, and (2) the Trial Court violated New York Criminal Procedure Law Section 310.30 in responding to two notes from the jury (Killian Decl. Ex. 5). The Appellate Division denied the application without opinion on March 22, 2011 (Killian Decl. Ex. 7). The New York Court of Appeals denied leave to appeal from this decision on August 11, 2011. People v. Acevedo, 17 N.Y.3d 812, 954 N.E.2d 92, 929 N.Y.S.2d 801 (2011).

On October 10, 2010, petitioner filed a motion in the Trial Court pursuant to New York Criminal Procedure Law Section 440.10 claiming that (1) trial counsel was ineffective for stipulating to what Detective Joseph White would have testified to had he been called (Killian Decl. Ex. 8 at 6-7); (2) the evidence was insufficient to sustain petitioner's conviction because there was no evidence establishing when or how Rojas' blood came to be on petitioner's pants (Killian Decl. Ex. 8 at 13-16), and (3) the use of a lab technician with no first-hand knowledge of the underlying tests to lay the foundation for the admission of the DNA analyses violated plaintiff's right to confront and cross-examine the witnesses against him pursuant to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Crawford v. Washington, 541 U.S. 36 (2004) (Killian Decl. Ex. 8 at 17-25).

The Trial Court rejected these claims in a decision issued on March 7, 2011, finding that all of petitioner's claims failed on substantive and procedural grounds (Killian Decl. Ex. 10). Petitioner filed an application to appeal this decision to the Appellate Division; the record does not disclose the outcome of this application (Killian Decl. ¶ 12)

In October 2010, petitioner also sought to stay consideration of his habeas corpus petition pending the exhaustion of his state collateral attacks. I denied that application without prejudice in an Opinion and Order, dated July 1, 2011 (Docket Item 8), finding that petitioner had failed to show good cause for his delay in bringing his state collateral attacks and had also failed to show that his unexhausted claims had merit.

III. Analysis

As I noted in my July 1, 2011 Opinion and Order, although both the Court of Appeals for the Second Circuit and the United States Supreme Court have confirmed that a district court has the power to stay consideration of a state prisoner's petition for a writ of habeas corpus in order to permit the prisoner to exhaust his unexhausted claims, Rhines v. Weber, 544 U.S. 269 (2005); Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the granting of such stay is not a matter of course.

Rhines v. Weber, supra, 544 U.S. at 277. The Court in Rhines did not define "good cause," nor has the Court of Appeals for the Second Circuit. Taylor v. Poole, 07 Civ. 6318 (RJH)(GWG), 2009 WL 2634724 at *30-*31 (S.D.N.Y. Aug. 27, 2009) (Gorenstein, M.J.) (Report & Recommendation), adopted, 2011 WL 3809887 (S.D.N.Y. Aug. 26, 2011) (Holwell, D.J.).

Petitioner seeks to stay consideration of his petition while he exhausts a total of four additional claims, namely (1) appellate counsel was ineffective for failing to argue (a) that petitioner was denied due process because he was handcuffed during jury selection and trial, and (b) that the Trial Court violated New York Criminal Procedure Law Section 310.30 in responding to two notes from the jury; (2) trial counsel was ineffective for stipulating to the testimony of a single witness; (3) the evidence against petitioner was insufficient to sustain the conviction, and (4) the admission of certain DNA evidence without the testimony of the individuals who performed the actual analysis, violated petitioner's Sixth Amendment rights under Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305, and Crawford v. Washington, supra, 451 U.S. 36. As explained below, the first three of these claims plainly lack merit and there is, therefore, no reason to stay consideration of the petition while petitioner exhausts these claims and no reason to permit him to amend his petition to assert these claims.2 With respect to the fourth claim, petitioner has failed to show good cause for his delay in asserting the claim and, therefore, the motion to stay should be denied.

A. Meritless Claims

1. Claims Concerning Appellate Counsel

In his petition for a writ of error coram nobis, petitioner claimed his appellate counsel was ineffective for failing assert two claims: (1) that petitioner was denied due process because he was handcuffed during jury selection and (2) that the Trial Court violated New York Criminal Procedure Law Section 310.303 in responding to two notes from the jury (Killian Decl. Ex. 5). The record demonstrates that both specifications of ineffective assistance are fatally flawed.

a. Applicable Legal Principles

In order to prevail on an ineffective-assistance-of-counsel claim, a habeas petitioner must meet the now-familiar, two-part test set forth in Strickland v. Washington, 466 U.S. 668, 686-87 (1984).

This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Accord Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005); Aeid v. Bennett, 296 F.3d 58, 62-63 (2d Cir. 2002); Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000); Hurel-Guerrero v. United States, 186 F.3d 275, 281-82 (2d Cir. 1999); McKee v. United States, 167 F.3d 103, 106-07 (2d Cir. 1999); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). This same standard applies to claims of ineffective assistance of appellate counsel. Mercer v. Herbert, 133 F.Supp.2d 219, 238 (W.D.N.Y. 2001) ("A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel."), citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); see also Hernandez v. Edwards, 98 Civ. 6704 (MBM), 2001 WL 575594 at *4 (S.D.N.Y. May 29, 2001) (Mukasey, D.J.).

In determining whether counsel's performance was objectively deficient, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington, supra, 466 U.S. at 689 (internal quotation marks omitted).

In the appellate context, "it does not suffice `for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument.'" McKee v. United States, supra, 167 F.3d at 106, quoting Mayo v. Henderson, supra, 13 F.3d at 533. "Rather, it is the hallmark of effective appellate advocacy to choose wisely which claims are brought on appeal." Fletcher v. Mann, 956 F.Supp. 168, 173 (N.D.N.Y. 1997) (internal quotation marks omitted), aff'd mem., 165 F.3d 13 (2d Cir. 1998). Thus,

Larrabee v. Smith, 14 F.Supp.2d 235, 239 (N.D.N.Y. 1998) (citations omitted), quoting Mayo v. Henderson, supra, 13 F.3d at 533; see Torres v. Irvin, 33 F.Supp.2d 257, 265-66 (S.D.N.Y. 1998) (Cote, D.J.). Because the test is conjunctive, a habeas petitioner's failure to satisfy either prong requires that the challenge to the conviction be rejected. Strickland v. Washington, supra, 466 U.S. at 697.

b. Application of Law to Facts

Turning first to petitioner's claim concerning being handcuffed in the view of the jury, the record demonstrates that petitioner affirmatively consented to being handcuffed in return for being permitted to stand during his trial. The record discloses the following colloquy with respect to plaintiff's being handcuffed:

(Transcript of Jury Selection at 9-10, quoted in the People's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Error Coram Nobis, dated Jan. 2011, ("People's Coram Nobis Memo."), at 4-5, annexed as Ex. 6 to Killian Decl.).

Defense counsel responded to the forgoing by thanking the Trial Judge for his consideration and consenting to the Judge's proposal.

(Transcript of Jury Selection at 10-11, quoted in People's Coram Nobis Memo. at 5, annexed as Ex. 6 to Killian Decl.).

The Trial Judge subsequently took the extra step of confirming directly with petitioner that he consented to being handcuffed in return for being permitted to stand:

(Transcript of Jury Selection at 26-27, quoted in People's Coram Nobis Memo. at 5, annexed as Ex. 6 to Killian Decl.).

In light of the foregoing, there can be no question that petitioner's being handcuffed was on consent and was a consequence of petitioner being allowed to stand during the proceedings. Moreover, the Trial Judge took the additional step of providing special instructions to the jury concerning petitioner's being handcuffed. In light of these facts, any Due Process claim based on petitioner's being handcuffed would have bordered on being frivolous, and appellate counsel was not ineffective for declining to assert this claim.

Petitioner's second argument concerning his appellate counsel's failure to raise a claim concerning Section 310.30 is equally deficient.

The New York Court of Appeals has endorsed a five-step process for trial courts to use in responding to jury notes in criminal cases.

People v. O'Rama, 78 N.Y.2d 270, 277-78, 579 N.E.2d 189, 192, 574 N.Y.S.2d 159, 162 (1991). The decision in O'Rama was not intended "to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel's input is most meaningful, i.e., before the court gives its formal response." People v. O'Rama, supra, 78 N.Y.2d at 278, 579 N.E.2d at 193, 574 N.Y.S.2d at 163; see also People v. Kisoon, 8 N.Y.3d 129, 134-35, 863 N.E.2d 990, 992-94, 831 N.Y.S.2d 738, 740-41 (2007).

Petitioner contends that the Trial Court failed to comply with foregoing procedure in two respects: (1) it failed to mark two notes as exhibits, and (2) it failed to read the notes into the record in the presence of counsel (Petitioner's Affidavit in Support of Motion for a Writ of Error Coram Nobis, dated Oct. 5, 2010 ("Petitioner's Coram Nobis Aff."), at 6, annexed as Ex. 5 to Killian Decl.). The facts in the record, record, however, do not support petitioner's claim. The two notes in issue — Jury Note Numbers 1 and 2 — were clearly marked as Court Exhibits V and VI, respectively; the fact that they were so marked is clear from their faces (Exs. B & C to Petitioner's Coram Nobis Aff., annexed as Ex. 5 to Killian Decl.4). Similarly, the trial transcript demonstrates that both notes were read into the record in the presence of counsel and outside of the presence of the jury (Exs. B (Trial Tr. at 597) & C (Trial Tr. at 599-600) to Petitioner's Coram Nobis Aff., annexed as Ex. 5 to Killian Decl.). Thus, an appellate claim based on the putative failure to comply with Section 310.30 would also have been doomed to failure.

Because both specifications of error by the Trial Court were baseless, any claim of ineffective assistance of appellate counsel based on his failure to the assert those specifications of error is plainly without merit. "The failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a criminal defendant is] entitled." Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (citations and inner quotations omitted); see also Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) ("The Sixth Amendment does not require [appellate] counsel . . . to press meritless arguments before a court."); Samet v. United States, 09 CV 5190 (CM), 01 CR 216 (CM), 2011 WL 5548012 at *10 (S.D.N.Y. Nov. 14, 2011) (McMahon. D.J.) ("Samet's claims with regard to Mr. Burstyn are meritless, thus appellate counsel was not ineffective for not raising the claims on appeal."); Prendergast v. Rivera, 06 Civ. 5314 (BMC), 2011 WL 4899945 at *7 (E.D.N.Y. Oct. 13, 2011). Thus, appellate counsel's decision not to assert claims based on either petitioner's being handcuffed before the jury or the Trial Court's alleged failure to comply with Section 310.30 was not only reasonable, it was the only rational decision that could have been made with respect to these putative errors. Appellate counsel's failure to assert these arguments was not ineffective assistance. Accordingly, there is no reason to stay consideration of the petition with respect to the claim concerning petitioner's appellate counsel and no reason to permit the petition to be amended to add such a claim.

2. Claims Asserted in Petitioner's 440.10 Motion

Two of the three claims that petitioner asserted in his 440.10 motion, and seeks to add here, are also meritless. In addition, petitioner has failed to how good cause for his delay in exhausting the third claim asserted in his 440.10 motion.

a. Stipulation Concerning Detective White's Testimony5

Detective Joseph White was one of the detectives who participated in the investigation of Rojas' death. The Honorable Dennis J. Boyle, Acting Justice of the Supreme Court, who pre-sided over petitioner's trial, summarized the testimony given by Detective White at a Mapp hearing as follows:

(Pretrial Decision, dated Apr. 27, 2007, quoted the People's Memorandum of Law in Opposition to Petitioner's Motion Pursuant to New York Criminal Procedure Law Section 440.10, dated January 2011 ("People's 440.10 Memo."), at 7, annexed as Ex. 9 to Killian Decl.).

Detective White had retired by the time of petitioner's trial, and counsel stipulated that he would have testified that after petitioner had been arrested and was at a precinct station in the Bronx, Detective White asked petitioner to remove his clothing and that he took petitioner's clothing and properly secured it (People's 440.10 Memo. at 7, annexed as Ex. 9 to Killian Decl.). Petitioner makes no claim that the clothing that was secured (and subsequently found to contain Rojas' blood) was not his; he makes no claim that the prosecution tampered with the clothing in any way; he makes no claim that the testimony Detective White gave at the Mapp hearing was inaccurate in any respect. In short, petitioner makes no claim that the live testimony of Detective White would have had any effect on the outcome of the trial and no claim that the live testimony of Detective White would have resulted in an outcome that was more favorable to petitioner.

Justice Boyle rejected petitioner's claim concerning the stipulation to Detective White's testimony with the following reasoning:

(Decision of the Honorable Dennis J. Boyle, dated Mar. 7, 2011, at 2-3, annexed as Ex. 10 to Killian Decl.). As explained in Section III(A)(1)(a), above, in order to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that his counsel's errors were so serious that counsel was, in effect, not acting as counsel, and petitioner suffered prejudice as a result, i.e., that counsel's errors were so serious that the results of the trial are not reliable. Petitioner's ineffective-assistance-of-trial-counsel claim meets neither criterion. The testimony at issue is garden variety chain-of-custody evidence to which many counsel routinely stipulate in criminal trials in order to avoid burdening the jury with uncontroverted matters. Second, petitioner does not even allege that the clothing in issue was not his or that Detective White's live testimony would have made an iota of difference in the trial's outcome. Under these circumstances, there is no reason to believe, or even suspect, that Justice Boyle's analysis is incorrect, let alone rises to the level of "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . ." 28 U.S.C. § 2254(d)(1). Thus, the claim is meritless.

b. Petitioner's Sufficiency Claim

The second claim asserted in petitioner's 440.10 motion — the evidence was insufficient to prove his guilt — is meritless because it is procedurally barred.

i. Applicable Legal Principles

A habeas petitioner's constitutional claim can be procedurally barred if it has not been asserted in state court proceedings in accordance with state procedural requirements and the state courts rely on that violation of state procedural requirements to reject the claim. As the Court of Appeals for the Second Circuit has explained:

Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999); see also Beard v. Kindler, ___ U.S. ___, ___, 130 S.Ct. 612, 614 (2009) ("A federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.") (inner quotations omitted); Cone v. Bell, ___ U.S. ___, ___ 129 S.Ct. 1769, 1780 (2009) (A federal court "will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment." (inner quotation marks omitted)); Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011); Bierenbaum v. Graham, 607 F.3d 36, 47 (2d Cir. 2010) (same); Rivera v. Moscicki, 03 Civ. 5810 (SAS), 2005 WL 2347840 at *2 (S.D.N.Y. Sept. 22, 2005) (Scheindlin, D.J.) ("A federal court generally may not review a state court decision that expressly relies on a procedural default as an independent and adequate state ground for dismissal.").

Dismissal of a claim on the ground that consideration of the merits is precluded by an adequate and independent state procedural ground is appropriate where the last reasoned state court decision expressly relies on a state procedural bar:

In Harris [v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)], the Court held that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. 1038 (internal quotation marks omitted). We apply the Long/Harris presumption to the last "reasoned state judgment". . . . See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). See also Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001)("We have repeatedly stated that in order for federal habeas review to be procedurally barred, a state court must actually have relied on a procedural bar as an independent basis for its disposition of the case, and the state court's reliance on state law must be unambiguous and clear from the face of the opinion.").

As long as the state court relies on a procedural bar as an independent basis for its decision, a claim will be procedurally barred on federal habeas review even where a state court addresses the merits of the claim in the alternative. As the Court of Appeals for the Second Circuit has noted:

This court has held that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Harris, 489 U.S. at 264 n.10, 109 S.Ct. at 1044 n.10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding"); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993).

Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). See also Robles v. Superintendent of Elmira Fac., 07 Civ. 596 (LBS), 2007 WL 2600857 at *3 n.3 (S.D.N.Y. Aug. 30, 2007) (Sand, D.J.); Ashley v. Burge, 05 Civ. 4497 (JGK), 2006 WL 3327589 at *5 n.5 (S.D.N.Y. Nov. 3, 2006) (Koeltl, D.J.); Santiago v. People, 97 Civ. 5076 (LAP)(SEG), 1998 WL 803414 at *4 (S.D.N.Y. Oct.13, 1998) (Preska, D.J.) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred.").

However, even where the last reasoned decision of the state court expressly rejects a federal constitutional claim on a state procedural ground, federal habeas corpus review will not be precluded if (1) the state procedural ground is not independent and adequate, see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006); Monroe v. Kuhlman, 433 F.3d 236, 241-42 (2d Cir. 2006); Cotto v. Herbert, supra, 331 F.3d at 238-39; (2) there is cause for and prejudice from petitioner's failure to assert his claims in accordance with state procedural law, or (3) a failure to consider the claim would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 324-27 (1995); Coleman v. Thompson, supra, 501 U.S. at 748-50; Harris v. Reed, 489 U.S. 255, 262 (1989); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005). To establish a fundamental miscarriage of justice, a habeas petitioner must show that a constitutional violation probably resulted in his conviction despite his actual innocence. United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral-review jurisprudence, the term `miscarriage of justice' means that the defendant is actually innocent."); Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003) ("A habeas petitioner may avoid [a procedural] default . . . by showing . . . that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.").

ii. Application of Law to Facts

Petitioner asserted his collateral attack in the Trial Court pursuant to New York Criminal Procedure Law Section 440.10, subsection (2)(c) of which provides, in pertinent part:

Justice Boyle rejected petitioner's sufficiency claim, stating:

(Decision of the Honorable Dennis J. Boyle, dated Mar. 7, 2011, at 3, annexed as Ex. 10 to Killian Decl.). Although Justice Boyle went on to consider the merits of this claim, as noted above, this alternative holding does not preclude the application of a procedural bar.

A state court's rejection of a motion to vacate pursuant to 440.10(2)(c) is an adequate and independent state ground sufficient to preclude review of the claim by way of a writ of habeas corpus. Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008); Barksdale v. Sheriff of Monroe County, 09-CV-170 (MAT), 2011 WL 915584 at *3 (W.D.N.Y. Mar. 15, 2011); Oliveri v. New York, 07 Civ. 8262 (CM)(RLE), 2010 WL 5620926 at *6 (S.D.N.Y. Dec. 29, 2010) (Ellis, M.J.) (Report & Recommendation).

As noted above, petitioner could, theoretically, overcome the bar resulting from the Trial Court's rejection of the sufficiency claim on state law procedural grounds by showing either cause for petitioner's failure to comply with state procedural law and prejudice therefrom, or that a failure to consider his sufficiency claim will result in a fundamental miscarriage of justice. Petitioner does not, however, attempt to make either showing.

Thus, petitioner's sufficiency claim is plainly meritless because it is procedurally barred.

c. Petitioner's Remaining Confrontation Clause Claim

The foregoing disposes of all of the claims petitioner seeks to add to his petition except his claim that the admission of certain DNA evidence without the testimony of the individuals who performed the actual analysis violated his Sixth Amendment rights under Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305 and Crawford v. Washington, supra, 541 U.S. 36 and .

The present state of the record is insufficient for me to conclude that this claim is so lacking in merit that a stay is inappropriate. First, although the prosecution argued in response to petitioner's 440.10 motion that this claim, like petitioner's sufficiency claim, was record based and could not, therefore, be raised through a 440.10 motion, the Trial Court did not clearly rely on this procedural ground to reject this claim. Specifically, the Trial Court stated: "While I recognize that the Melendez-Diaz case was decided by the United States Supreme Court after defendant's conviction, nevertheless, the alleged error is record based and could have been raised on direct appeal (See, People v. Stewart, 67 A.D.3d 553, lv. granted 14 N.Y.3d 805)" (Decision of the Honorable Dennis J. Boyle, dated Mar. 7, 2011, at 3, annexed as Ex. 10 to Killian Decl.). Justice Boyle then went on to reject the claim on the merits. It is unclear whether the foregoing language constitutes a ruling or an observation. Because a finding of procedural bar requires express reliance by the state court on the state-law procedural defect and the nature of the Trial Court's decision is ambiguous, it would be premature to reject this claim as plainly without merit on the ground that it is procedurally barred.

Second, although the respondent argues (and Justice Boyle correctly noted) that the overwhelming weight of authority holds that Melendez-Diaz is not retroactive to collateral attacks, see e.g., Williams v. Director, VDOC, 3:11CV392, 2011 WL 5526371 at *2 (E.D. Va. Nov. 14, 2011); Adams v. United States, 09-6152 (GEB), 2011 WL 1792562 at *3 (D.N.J. May 10, 2011); Vega v. Walsh, 06-CV-6492 (ARR)(JO), 2010 WL 1685819 at *10 (E.D.N.Y. Apr. 22, 2010), respondent does not explain how Crawford, which was decided before petitioner's trial, bears on petitioner's Confrontation Clause claim. Because petitioner relies in part on Crawford in support of his Confrontation Clause claim, the non-retroactivity of Melendez-Diaz is not dispositive.

Third, neither the testimony nor the report that underlies this claim has been offered by either side. Thus, I do not even have a clear record concerning the events that give rise to this claim.

Given the foregoing, it is impossible to conclude with confidence that petitioner's Confrontation Clause claim is so plainly without merit that it should be rejected out of hand. Nevertheless, petitioner's failure to explain adequately why he did not exhaust this claim earlier warrants the denial of petitioner's motion.

As noted in my July 1, 2011 Order in this matter, neither the Supreme Court nor the Court of Appeals for the Second Circuit has defined the "good cause" necessary to justify a stay of a habeas corpus petition. Taylor v. Poole, supra, 2009 WL 2634724 at *30-*31.

Williams v. Marshall, 09 Civ. 7411 (RJH)(MHD), 2011 WL 1334849 at *2 (S.D.N.Y. Mar. 30, 2011) (Dolinger, M.J.), quoting Whitely v. Ercole, 509 F.Supp.2d 410, 417 (S.D.N.Y. 2007) (Hellerstein, D.J.) (other citations omitted). However, a substantial number of District Courts have analogized the former definition of "good cause" "to the requirement that a habeas petitioner demonstrate cause to excuse other types of procedural defaults." Whitley v. Ercole, supra, 509 F. Supp. 2d at 417 (internal quotations omitted). The latter articulation has no relevance here because, as explained below, the excuse proffered by petitioner does not involve any claim of confusion.

The sole justification petitioner offers for his failure to exhaust his Confrontation Clause claim in a timely manner is his lack of fluency in English and his assertion that a bilingual law library clerk was not made available to help him until April 2010. However, a lack of fluency in English and similar limitations have repeatedly been found insufficient to constitute cause sufficient to excuse a procedural default.

With regard to Petitioner's claim that he "speaks little or no [E]nglish," Petitioner's language skills are not "external to his defense within the meaning of Coleman and, therefore, cannot constitute "cause." See Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993) (finding that pro se prisoner's illiteracy and mental retardation are not factors "external" to defense and thus are insufficient to demonstrate cause); Roccisano v. United States, 936 F.Supp. 96, 99 (S.D.N.Y. 1996) (rejecting petitioner's argument that his limited English skills constitute external source under cause analysis). Tineo v. United States, 977 F.Supp. 245, 254 (S.D.N.Y. 1996) (Lowe, D.J.); see also Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy not external factor sufficient to excuse procedural bar); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition not external factor sufficient to excuse procedural bar); Fabian v. Herbert, 00 Civ. 5515 (SHS)(RLE), 2003 WL 173910 at *4 (S.D.N.Y. Jan. 23, 2003) (Ellis, M.J.) (Report & Recommendation) (inability to speak or comprehend English insufficient to overcome procedural bar).

Moreover, although the Court of Appeals has concluded that an inability to speak English may provided a basis for an equitable toll of the limitations period applicable to habeas corpus petitions, it has required that a petitioner attempting to rely on this excuse must demonstrate efforts to overcome the linguistic deficit during the period he seeks to toll. Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008); accord Rodriguez v. Ercole, 08-CV-3745 (NG), 2010 WL 4669919 at *8 (E.D.N.Y. Aug. 2, 2010). Assuming, without deciding, that this same standard could be applied to habeas petitioner seeking a stay under Rhines, petitioner here fails to meet it because he does not claim that he made any effort to overcome his inability to speak English between his conviction in 2007 and the Spring of 2010.

Thus, I conclude that petitioner has not shown good cause for his failure to exhaust his Confrontation Clause claim in a timely manner, and therefore, his motion for a stay and to amend his petition should also be denied with respect to this claim.

IV. Conclusion

For all the forgoing reasons, all the claims petitioner seeks to exhaust and add to his petition are either plainly meritless or petitioner has led to show good cause for his failure to exhaust state remedies in a timely manner. Accordingly, petitioner's motion to stay consideration of his habeas corpus petition and to amend his petition is denied in all respects. This Opinion and Order closes Docket Item 10.

SO ORDERED.