MEMORANDUM AND ORDER
Louis Laurore ("Laurore"), proceeding pro se, brings thispetition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.In the petition, he challenges his conviction in theMassachusetts Superior Court for first degree murder, armedassault with intent to murder, and violation of an abuse andprotection order. Resp't Answer Am. Pet. for Writ of HabeasCorpus I ("Answer I") [Doc. No. 21] ¶ 4 . Laurore moves to dropgrounds five, six, and seven of his Amended Petition and stayconsideration of the petition while he returns to MassachusettsSuperior Court to exhaust three completely new claims. Pet'r Mot.to Drop Unexh. Claims and for Stay and Abey. of Exh. Claims ("Pet'r Mot. Drop") [Doc. No. 31] at 1; Aff. of Louis Laurore("Laurore Aff.") [Doc. No. 31, Attach. 1] ¶¶ 6-7.
For the reasons set forth in the following discussion,Laurore's motion is ALLOWED insofar as it seeks to drop groundsfive, six, and seven of his amended petition. Insofar as hismotion seeks to stay the petition, it is DENIED.
II. FACTS AND PROCEDURAL POSTURE
On November 29, 1995, Laurore's wife was shot in the face atclose range, in the presence of her young daughter.Commonwealth v. Laurore, 437 Mass. 65, 69 (2002). Later thatday, Laurore's brother-in-law was shot in the shoulder and struckin the head with a gun, also in the presence of the young girl.Id. at 67-68. The next day, Laurore was arrested andsubsequently charged as the perpetrator of these crimes. Id. at66, 68.
On March 19, 1997, a Massachusetts jury convicted Laurore offirst degree murder, armed assault with intent to murder, andviolation of a restraining order. Resp't Supplemental App.("Resp't App.") [Doc. No. 11] Ex. A at 9, 16. The court sentencedhim to life in prison for the murder conviction and imposed an18-20 year concurrent sentence for the assault conviction. Id.at 9, 10. On the day of his conviction, Laurore filed a timelynotice of appeal directly to the Massachusetts Supreme JudicialCourt pursuant to Mass. Gen. Laws, ch. 278, § 33E. Prior to the Supreme Judicial Court's consideration of hisappeal, Laurore moved for a new trial pursuant to section 30(b)of the Massachusetts Rules of Criminal Procedure, claiming sevenconstitutional and statutory errors. Resp't App. Ex. C at 144-51.While this motion was being considered by the Superior Court, theSupreme Judicial Court stayed consideration of his direct appeal.Resp't App. Ex. A at 12. The Superior Court's subsequent denialof Laurore's motion for a new trial was consolidated with thedirect appeal of his conviction. See id. at 12, 15.
The Supreme Judicial Court affirmed both the conviction and thedenial of the motion for a new trial on June 6, 2002. SeeLaurore, 437 Mass. at 66. The ninety-day period during whichLaurore could have filed a petition for certiorari in the UnitedStates Supreme Court ended on September 6, 2002. He chose not toseek further direct review.
Rather, on October 8, 2002, Laurore filed a petition for writof habeas corpus in this Court pursuant to 28 U.S.C. § 2254("original petition"). Pet. Writ of Habeas Corpus [Doc. No. 4].The Court allowed the respondent Luis Spencer ("Spencer")additional time to answer on November 21, 2002, and he did so onDecember 18, 2002, Resp't Answer I [Doc. No. 10], moving at thesame time to dismiss the petition. Spencer argued that Laurorefailed to exhaust three of the grounds in his petition in thestate courts as required by 28 U.S.C. § 2254(b)(1). Resp't Mot. Dismiss Pet. Writ Habeas Corpus [Doc. No. 12]; Resp't Mem. Supp.Mot. Dismiss Pet. Writ Habeas Corpus [Doc. No. 13] at 1.
On December 26, 2002, prior to resolution of the motion todismiss, Laurore moved to amend his petition to include twoadditional grounds. Pet'r Mot. Am. Pet. I [Doc. No. 14]. TheCourt allowed this motion, and Laurore filed his amended petitionfor writ of habeas corpus ("amended petition") on April 25, 2003.Am. Pet. for Writ of Habeas Corpus ("Am. Pet.") [Doc. No. 20]. OnMay 19, 2003, Spencer filed an amended answer to the amendedpetition and a motion to dismiss containing much the sameargument he made in the previous (undecided) motion. Resp'tAnswer to Am. Pet. ("Answer II") [Doc. No. 21]; Resp't Mot.Dismiss Am. Pet. ("Mot. Dismiss II") [Doc. No. 22]; Resp't Mem.Supp. of Mot. Dismiss Am. Pet. ("Resp't Mem. Supp. II") [Doc.No. 23].
Initially, this Court allowed Spencer's motion, agreeing thatthree of the grounds had not properly been exhausted and that thecase therefore should be dismissed under Rose v. Lundy,455 U.S. 509 (1982). Order of 6/4/03. Upon Laurore's motion forreconsideration, however, the Court gave Laurore the choice ofeither amending his petition to delete the unexhausted claims orstaying the petition while he returned to state court to exhaustthose claims. Order of 6/19/03 [Doc. No. 25] at 14-15.
Approximately two weeks later, on July 7, 2003, Spencer movedfor clarification of the order, arguing that an open-ended stay was improper. Resp't Mot. Recons. [Doc. No. 26] at 1. TheCourt agreed, and on July 21, 2003, amended its order to allowLaurore sixty days to return to state court to exhaust the claimsand then thirty days after his claims were exhausted to proceedon the federal petition. Order of 7/21/03 [Doc. No. 27].
In response to this order, Laurore filed another motion for anew trial in the Massachusetts Superior Court, attempting toexhaust the unexhausted claims in the Amended Petition. Resp'tMot. Dismiss III [Doc. No. 30] Ex. 1 at 15. That court denied themotion on February 18, 2004. Id. To date, Laurore has yet toseek further review of the decision. Resp't Mot. Dismiss III at2.
Taking note of Laurore's failure to proceed further on theunexhausted claims in state court, Spencer filed a motion withthis Court on July 19, 2005 to dismiss the amended petition forfailure diligently to exhaust the unexhausted claims. Resp't Mot.Dismiss III. The Court conditionally allowed the motion, givingLaurore thirty days to delete the unexhausted claims and proceedwith the petition. Order of 8/18/05.
Laurore now moves to delete the unexhausted claims from hispetition and for a stay of the remainder so that he may exhaustthree completely new claims in the state courts. Pet'r Mot. Drop.The motion was filed on September 7, 2005, well within the thirtyday limit imposed by the Court's August 18, 2005 order. Spencerfiled his opposition to this motion on September 21, 2005. Resp't Opp'n Pet.'s Mot. Drop [Doc. No. 32]. Spencer'sopposition only challenges Laurore's request that the Court stayhis petition. Id. at 1-2.
A. Existing Unexhausted Claims
Pursuant to this Court's August 18, 2005 Order, grounds five,six, and seven are ordered deleted from Laurore's amendedpetition. A decision on his request for a stay of the remainingclaims in the petition, however, requires further analysis.
B. Amending the Petition
Laurore styles his motion as a motion for stay and abeyance ofunexhausted claims in the petition. In doing so, however, heomits one important step. Before Laurore can request that thisCourt stay the petition so that he may exhaust his new claims, hemust further amend his petition to include these claims. AsLaurore is proceeding pro se, the Court will treat his presentmotion as a motion to amend as well as to stay. See Castro v.United States, 540 U.S. 375, 381-82 (2003) (noting the federalcourts' practice of recharacterizing pro se motions "in order toavoid an unnecessary dismissal, to avoid inappropriatelystringent application of formal labeling requirements, or tocreate a better correspondence between the substance of a pro semotion's claim and its underlying legal basis." (internalcitations omitted)). To decide whether amendment of a federal habeas petition shouldbe allowed, a court must look to the Federal Rules of CivilProcedure. See 28 U.S.C. § 2242 ("Application for writ ofhabeas corpus . . . may be amended or supplemented as provided inthe rules of procedure applicable to civil actions.").Specifically, Rule 15(a) provides that leave to amend "shall befreely given when justice so requires." Fed.R.Civ.P. 15(a).
Rule 15 is particularly important in the context of federalhabeas petitions, given the one year statute of limitationscreated by the Antiterrorism and Effective Death Penalty Act of1996 ("AEDPA"). 28 U.S.C. § 2244(d)(1). As a result of thisstatute, any claim brought after the limitations period has runmust relate back to the original petition to be consideredtimely. Mayle v. Felix, 125 S. Ct. 2562, 2566 (2005).
Rule 15 allows for amendments to relate back to the originaldate of the pleading when "the claim or defense asserted in theamended pleading arose out of the conduct, transaction, oroccurrence set forth or attempted to be set forth in the originalpleading." Fed.R.Civ.P. 15(c). In the context of habeascorpus, "the Rule 15 `relation back' provision is to be strictlyconstrued, in light of Congress' decision to expedite collateralattacks by placing stringent time restrictions on [them]."United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005)(internal quotation marks and citation omitted, alteration inoriginal). A new claim must be similar "in both time and type" to a claim in the original petition for the new claim to relateback. See Mayle, 125 S. Ct. at 2566. Therefore, "relationback" will be appropriate when "the original and amendedpetitions state claims that are tied to a common core ofoperative facts," id. at 2574, or when "the prisoner'samendment seeks merely to elaborate upon his earlier claims."United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir.2002).1 The relationship between the original petitionand the new claim must be stronger than the fact that both aroseout of the "same trial, conviction, or sentence." Mayle,125 S.Ct. at 2574.
Laurore requests permission to exhaust three new claims so thathe may add them to his petition. First, he claims that the trialcourt erred in refusing to give an instruction on manslaughterover defense counsel's objection. Laurore Aff. ¶ 6. Second, heasserts that the trial court should have instructed the jury onthe meaning of malice because his "mental impairment precludedthe specific intent to commit murder." Id. Finally, he claimsthat he was "denied the assistance of counsel on direct appeal."Id.
Laurore's third new claim is easily dismissed. At no point inhis original or amended petitions did he assert any argument evenremotely related to his appeal or his appellate counsel. This claim is so clearly different in both time and type from theclaims in his timely-filed petitions that Laurore is precludedfrom adding this claim to his petition by the statute oflimitations.
Laurore's first and second new claims fair only slightlybetter. At first glance, it appears that these claims mightrelate to the third and fourth grounds for relief asserted inLaurore's amended petition, in that they all deal with allegedlydefective jury instructions. Previously, Laurore has assertedthat the trial court's jury instructions on the voluntariness ofLaurore's statements to police were constitutionally defectivebecause the court failed to instruct the jury that voluntarinessmust be proved beyond a reasonable doubt. Am. Pet. Habeas Corpusat 6. Laurore's brief in his appeal to the Supreme Judicial Courtsuggests that this claim is based on his alleged mentalimpairment at the time of his interrogation by the police. Resp'tApp. Ex. B at 56-66. In this respect, the new claims concerningjury instructions as to Laurore's inability to form the requisiteintent required for the charged crimes might be sufficientlysimilar to allow relation back, in that all three claims rely onan alleged mental deficiency and the trial court's failure topresent this issue to the jury.
Upon closer examination, however, this reasoning cannotprevail. Although all the claims relate to alleged defects in thejury instructions, the new claims are of a distinctly different legal nature than the claim in the original petition.The new claims presumably rely on the Fourteenth Amendment anddue process protections while the original claim is based onLaurore's Fifth Amendment privilege against self-incrimination.Therefore, the claims are not sufficiently similar in type. Cf.Ciampi, 419 F.3d at 24 (noting that a petitioner does notsatisfy Rule 15(c) simply because both claims allege ineffectiveassistance of counsel).
Further, Laurore's new claims cannot be seen as an attemptsimply to "elaborate upon his earlier claims." Hicks,283 F.3d at 388. As mentioned above, Laurore originally claimed that thejury should have been instructed to consider whether hisinterrogation was voluntary beyond a reasonable doubt. The laterclaims — those involving the instructions on the capacity to formintent at the time of the murder — cannot be considered thelogical outgrowth of the claim that an erroneous standard ofproof was explained to the jury. See id. ("[W]hile amendmentsthat expand upon or clarify facts previously alleged willtypically relate back, those that significantly alter the natureof a proceeding by injecting new and unanticipated claims aretreated far more cautiously."). An examination of Laurore'smental state at the time the crimes were committed is simply notthe same as an examination of his mental state at the time of hisinterrogation. Therefore, because Laurore's new claims are not sufficientlyrelated in time and type to the claims in his amended petition,he may not further amend the petition to include these newclaims.
C. Motion for Stay and Abeyance
Laurore asks this Court to stay his petition so that he mayreturn to state court and exhaust the new claims discussed in theprevious section of this order. Because the Court concludes thathis new claims will not relate back to his amended petition, thisrequest is now moot. Further, while this Court could, as a matterof comity and judicial economy, stay Laurore's petition while thestate court considers his new claims, see Nowaczyk v.Warden, 299 F.3d 69, 78 (1st Cir. 2002), such action is notwarranted in this case.
In Nowaczyk, the First Circuit held that it was an abuse ofdiscretion for the district court to dismiss without prejudice acompletely exhausted petition while the petitioner pursued otherclaims in state court. Id. at 71. The First Circuit did,however, suggest that where considerations of judicial economyand federal-state comity might be served, a stay of the exhaustedpetition would be permissible. Id. at 77-78.
In the present case, these same considerations lead this courtto conclude that a stay is improper. In terms of judicialeconomy, a stay would only serve further to delay decision on a petition that already has been on this Court's docket for almostthree years, and has been floundering in the state court systemfor almost ten.
Further, the Court once has stayed the case for almost a year,allowing Laurore time to exhaust a number of other claims.Laurore failed to follow through on those claims. This Court seesno reason to believe Laurore would be more diligent this timearound. Therefore, the probability that a state court decisionfavorable to Laurore would make the federal petition superfluousis outweighed by this Court's legitimate interest in timelyresolution of cases before it.
Neither is a stay warranted in the interest of comity. TheNowaczyk court noted that principles of federal-state "comity[do] not require the district court to `defer action' until theconclusion of state proceedings." Id. at 78. Massachusettsstate courts have had the opportunity to rule on all the claimsin Laurore's current petition. While a stay might arguably beconsistent with comity, the Court's interest in prompt resolution of the petition, particularly given the procedural history ofthis matter, outweighs the concerns of comity. IV. CONCLUSION
Accordingly, Laurore's motion to drop unexhausted claims andfor a stay [Doc. No. 31] is ALLOWED IN PART AND DENIED IN PART.Insofar as Laurore seeks to drop grounds five, six, and seven,the motion is ALLOWED. Insofar as the motion seeks to stay thepetition so that he may pursue separate state claims, it isDENIED. This Court will proceed timely on the merits of theremaining claims of his exhausted petition.