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United States District Court, Southern District of New York

May 22, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge


On May 15, 2003, this Court entered an order as follows:

"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 it.
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)."

Petitioner now has sent the Court a copy of an order, dated March 19, 2003, of the New York Supreme Court, which denied his CPL § 440.20 motion. Contrary to petitioner's assertion, however, that order does not constitute "proof that [his] State remedies have been exhausted." Letter, May 19, 2003. An order denying a motion made pursuant to CPL § 440.20 may appeal by leave issued pursuant to Section 460.15. Petitioner has yet to demonstrate that he has exhausted his state remedies. Accordingly, the application to vacate the stay is denied.



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