United States District Court, Southern District of New York
May 22, 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
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
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
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
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.
© 1992-2003 VersusLaw Inc.