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MARCUS v. CONWAY

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 petition.

  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.

  SO ORDERED.

20040423

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