The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
In February 2004, Lawrence Lewis ("Lewis"), proceeding pro
se, made an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. By order dated March 10, 2004, the assigned district
judge, inter alia, directed the respondent to file an answer or
other pleading in response to the petition, along with supporting
documents. On the same day, by memorandum endorsement, the assigned
district judge granted petitioner's request to amend his petition.
In his application for leave to amend his petition, Lewis states that
he has sought permission from the New York State Supreme Court, Appellate
Division, to appeal the trial court's denial of his motion, made pursuant
to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the
judgment of conviction. That application, or the appeal of the motion,
remains pending; therefore, the claims raised in Lewis' CPL § 440.10
motion are unexhausted for the purposes of habeas corpus review.
A dismissal of Lewis' habeas corpus petition without prejudice to
renewal after exhaustion of state court remedies could jeopardize the
timeliness of the petition, because any newly filed petition would be
time-barred as to the exhausted claims. Accordingly, under Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.).
cert. denied, 534 U.S. 1015, 122 S.Ct. 506 (2001), a stay of
the exhausted portion of Lewis' habeas corpus petition, pending the
exhaustion of state remedies as to his other claim(s), is mandated. A
stay of the petition avoids the procedural obstacles which would arise if
Lewis were to withdraw his petition and resubmit it at a later date, or
have his resubmitted petition treated as a second or successive petition.
Accordingly, adjudication of the claims presented in Lewis' original
habeas corpus petition is stayed and the claims raised in his CPL §
440.10 motion are dismissed in order to allow Lewis to exhaust his
remedies in state court. Lewis is directed to return to this court within
thirty (30) days after the conclusion of state proceedings.
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