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THOMAS v. PEOPLE OF THE STATE OF NEW YORK

United States District Court, Southern District of New York


March 21, 2003

BERNHARD THOMAS, PETITIONER,
v.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.

The opinion of the court was delivered by: Denise Cote, United States District Judge

MEMORANDUM OPINION AND ORDER

By letter dated March 13, 2003, Bernard Thomas ("the petitioner") informed the Court that he wished to pursue further review of his criminal conviction in state court. He requested that the Court stay his federal habeas petition, received by the pro se office on February 6, 2003.

When a district court stays a federal habeas petition under Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the stay must be

condition[ed] . . . on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed.
Id. at 381. Thomas is advised that if he has not already initiated proceedings to obtain further review of his criminal conviction, he must do so within thirty days of the date of this Order.

Zarvela also requires a prompt return to federal court after a petitioner's state claims are exhausted. Should Thomas wish to renew his federal habeas petition after he has exhausted his state court remedies, Thomas must move to lift the stay no more than thirty days after all of his state court proceedings have become final. If this condition is not met, the stay may he vacated nunc pro tunc and the petition dismissed.

Thomas is advised that unless he seeks a writ of certiorari to the Supreme Court, his thirty-day time limit to return to federal court may commence at the conclusion of the proceedings in state court. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).

Thomas is also advised that should he wish to amend his habeas petition once his state court proceedings have become final, any motion to amend will be governed by Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242. Under Rule 15(c)(2), Fed.R. Civ. P., an added claim will only relate back to the date of his original federal petition if the claim "arose out of the conduct, transaction, or occurrence" that formed the basis of his original petition.

Accordingly, it is hereby

ORDERED that petitioner's federal habeas petition is stayed.

IT IS FURTHER ORDERED that the stay is conditioned on the petitioner moving to lift the stay within thirty days of the conclusion of his state court proceedings.

SO ORDERED.

20030321

© 1992-2003 VersusLaw Inc.



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