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March 7, 2002


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge:


Petitioner Pedro Pacheco ("Pacheco") has moved to stay his amended petition for habeas corpus filed on May 24, 2000. Pacheco argues that a stay is necessary to preserve the timeliness of his exhausted claims while he exhausts the unexhausted claims in state court. Respondent opposes the motion for a stay on the following grounds: (1) there is no legally cognizable issue appropriate for habeas corpus review, and (2) the underlying claim is time barred, notwithstanding a stay. Based on the following, petitioner's motion is GRANTED.


On July 25, 1987, Julio Lopez was shot and killed while walking down a Bronx street with two friends, Jose de Jesus and Adrian Caban. Amended Petition ("Amd. Pet.") at 3. Pacheco was charged with the crime. On September 27, 1989, he was convicted by a jury in Supreme Court, Bronx County, on one count of murder in the first degree for Lopez's death. Affirmation in Support of Motion to Stay Petition in Order to Permit Exhaustion of State Remedies ("Pet. Aff.") at ¶ 3. On November 20, 1989, Pacheco was sentenced to an indeterminate term of imprisonment of twenty years to life. Id. He filed a notice of appeal to the Appellate Division, First Department, on November 21, 1989. Amd. Pet. at 2. On April 8, 1993, his conviction was affirmed. People v. Pacheco, 595 N.Y.S.2d 780 (N.Y. App. Div. 1993). On April 15, 1993, Pacheco sought leave to appeal from the New York Court of Appeals. Amd. Pet. at 2. The application was denied on June 8, 1993. Id.

On May 16, 1997, Pacheco filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, asserting the following three grounds: (1) his conviction was not sustained by legally sufficient evidence; (2) he was denied his due process right to a fair trial when the judge admitted evidence of the decedent's drug dealing; and (3) his sentence was excessive. Pet. Aff. at ¶ 4. The petition was dismissed by District Judge Griesa on December 2, 1997, as time barred under 28 U.S.C. § 2244(d). Id. at ¶ 5. On September 22, 1998, the Second Circuit vacated Judge Griesa's decision in light of its then-recent decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and remanded the matter for a determination of whether petitioner had timely filed his petition with prison officials. Id. at ¶ 6. By Order dated March 8, 1999, the matter was reopened. Id. at ¶ 7.

On February 22, 2000, Flora Edwards ("Edwards") entered her appearance as Pacheco's counsel, and by Order dated March 10, 2000, was granted permission to file an amended petition. Id. at ¶ 8. On May 24, 2000, Pacheco filed an amended petition asserting a due process claim of actual innocence based on newly discovered evidence. Id. at ¶ 9; Amd. Pet. at 13. At the crux of the claim is an assertion that one of the prosecution's main witnesses, Adrian Caban ("Caban"), perjured himself when he identified Pacheco as the shooter. Amd. Pet. at 10. In support of the amended petition, Pacheco submits an affidavit by Caban stating that he is now willing to recant his previous statements and testify that Pacheco was not the shooter. Id. at Exh. S (Affidavit of Adrian Caban). The amended petition includes, inter alia, requests for a vacatur of Pacheco's conviction and sentence in light of the newly discovered evidence and the grounds set forth in his initial petition, and an evidentiary hearing to offer proof in support of the petition. Amd. Pet. at 23. The amended petition also requests, in the alternative, that the Court dismiss the petition without prejudice to allow Pacheco to exhaust his state remedies. Id.

On September 4, 2001, Pacheco filed a "Motion to Stay the Petition in Order to Permit Exhaustion of State Remedies." Acknowledging that the amended petition is a mixed petition containing both exhausted and unexhausted federal claims, Pacheco filed the motion to stay, rather than dismiss the petition, in accordance with the Supreme Court's decision in Duncan v. Walker, 533 U.S. 167 (2001), and the Second Circuit's decision in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). Memorandum of Law in Support of Petitioner's Motion to Stay Petition Pending Exhaustion of State Remedies ("Pet. Mem."). The Bronx County District Attorney's Office filed an affidavit in opposition to the motion on January 29, 2002, arguing that the stay should be denied in the interests of judicial economy because the "newly discovered evidence" claim does not present an issue cognizable upon habeas corpus review, and is also time-barred. Affidavit in Opposition ("Aff. Opp.") at 1.


A. Substantive Exhaustion

Under 28 U.S.C. § 2254(b), amended in 1996 by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires a habeas petitioner challenging a state conviction on federal grounds to have presented his or her claims to the state courts first. See Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984). In doing so, petitioners are not obligated to cite "book and verse on the federal constitution," Picard, 404 U.S. 270, 278 (1971) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), but they must provide adequate notice to the state courts that they are to decide federal constitutional claims. Such notice includes:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye, 696 F.2d at 194; see also, Gray v. Netherland, 518 U.S. 152, 153 (1996); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

Contrary to the respondent's argument that the petition "does not present an issue cognizable upon habeas corpus review," Aff. Opp. at 1, assertions of perjury and recantation present serious questions appropriate for a court with habeas jurisdiction to examine. "[T]he use of perjured testimony violates the due process clause when the court has `a firm belief that but for [that] testimony, the defendant would most likely not have been convicted.'" Sanders v. Sullivan, 900 F.2d 601, 606 (2d Cir. 1990) (Sanders II) (quoting Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988)) (Sanders I). At this point, this Court is merely deciding whether or not a stay should be granted in order to enable the petitioner to present evidence of his due process claim to the state court. Without having conducted an evidentiary hearing to establish the value or credibility of Caban's recantation, the Court need not decide at this time the weight his testimony would have had on the jury who deliberated on his conviction for purposes of granting or denying the petition. The Court does find, however, that the allegations of perjury and actual innocence contained in Pacheco's amended petition do present issues ...

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