United States District Court, S.D. New York
April 23, 2004.
TONY MARCUS, Petitioner, -against- SUPT. JAMES CONWAY, Respondent
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
In February 2004, Tony Marcus ("Marcus"), proceeding pro se, submitted
to the court an amended petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In his amended petition, Marcus indicated that a
motion, made pursuant to New York Criminal Procedure Law ("CPL") §
440.10, to vacate his judgment of conviction remains pending in state
court. The ground of Marcus's CPL § 440.10 motion is that he was denied
the effective assistance of trial counsel in violation of the Sixth
Amendment. The denial of the effective assistance of trial counsel
appears to be one of the claims raised by petitioner in his application
for habeas corpus relief. However, since his CPL § 440.10 motion remains
pending, his claim for ineffective assistance of trial counsel is
unexhausted for the purposes of habeas corpus review.
A dismissal of Marcus's 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 Marcus's 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 Marcus were to withdraw his petition and resubmit it at a later date,
or have his resubmitted petition treated as a second or successive
Accordingly, adjudication of the claims presented in Marcus's amended
habeas corpus petition is stayed and his new claim alleging the
ineffective assistance of trial counsel is dismissed in order to allow
him to exhaust his remedies in state court. Petitioner is directed to:
(1) initiate state proceedings within thirty (30) days of entry of this
Order; and (2) return to this court within thirty (30) days after the
conclusion of those proceedings.
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