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CURRY v. BURGE
May 15, 2003
JEROME CURRY, PETITIONER, AGAINST JOHN BURGE, ETC., ET ANO., RESPONDENTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
Jerome Curry, a state inmate, filed a petition for a writ of habeas corpus in this Court earlier this year.
On March 16, 2003, petitioner informed the Court that he wished the petition held in abeyance because he was awaiting a decision from the New York Supreme Court on a motion for collateral review pursuant to N.Y. Crim. Proc. L. § 440.20. The Court thereupon stayed the action and placed it on the suspense docket "pending advice from petitioner that state remedies have been exhausted."
On April 2, 2003, petitioner again wrote to the Court, this time stating that his prior request had been misinformed, stating "that said issue is not of constitutional magnitude" and not worth presenting in this Court, and asking to "restart" his habeas petition. The Court denied the application on the ground that it was impossible to tell from petitioner's letter what claim he no longer intends to press and, in any case, that it was unclear what claims remain pending in the state court.
Petitioner now has sent an amendment which purports to add a new paragraph to his petition, which claims that a provision of state law under which he was declared a second violent felony offender is unconstitutional, along with a memorandum of law and a letter asking for advice about how to "restart" his petition.
It is not this Court's responsibility to provide petitioner with legal advice. Nevertheless, petitioner bears the burden of establishing that he has exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). He has informed the Court that there is a pending state proceeding raising issues that he intends to present to this Court, so there is every reason to believe that his petition here contains at least some unexhausted claims. Even a mixed petition — one that presents both exhausted and unexhausted claims — ordinarily must be dismissed. E.g., Rose v. Lundy, 455 U.S. 509 (1982). The stay avoids, at least for the present, a dismissal on this ground, a dismissal which might have serious adverse consequences even for any exhausted claims that petitioner wishes to present.
Petitioner has the following choices:
1. He may await the outcome of the state proceeding,
during which period the stay of this proceeding will
continue. Once the state proceeding has been
determined, he may apply to vacate the stay upon a
showing that he has exhausted his state remedies. Any
such application shall identify the state proceeding
to which petitioner referred in his March 16, 2003
letter by title and index number, describe its
status, and attach copies of any decisions rendered in
2. He may amend his petition in this Court to present
only exhausted claims.
See, e.g., Pratt v. Greiner, 306 F.3d 1190
, 1197 (2d Cir. 2002).
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