Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

LEWIS v. PHILLIPS

United States District Court, S.D. New York


April 5, 2004.

LAWRENCE LEWIS, Petitioner, -against- WILLIAM E. PHILLIPS Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM and ORDER

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.

  SO ORDERED.

20040405

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.