United States District Court, S.D. New York
May 6, 2004.
LEVON WILLIAMS, Petitioner, -against- DALE ARTUS, Respondent
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM AND ORDER
In February 2004, Levon Williams ("Williams"), proceeding pro
se, filed a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. Williams now moves to withdraw his habeas corpus
petition pending adjudication, in the relevant state courts, of federal
law claims he has not previously presented to the state courts for
The petition states that eight of the ten claims raised in Williams'
petition grounds 1-5 and 7-9 ("unexhausted claims") have
never been presented to the state courts for adjudication. The other two
claims grounds 2 and 10 ("exhausted claims") were raised
by Williams on direct appeal from his conviction and were rejected on
the merits by the New York State Supreme Court, Appellate Division,
First Department. On February 18, 2003, the Honorable Victoria A.
Graffeo, Associate Judge of the New York Court of Appeals, denied the
petitioner leave to appeal to that court from the determination of the
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides,
in pertinent part, that an application for a writ of habeas corpus by an
individual in custody pursuant to a state court judgment must be filed
within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review."*fn1 28 U.S.C. § 2244(d)(1)(A). Due to this
time limitation, a dismissal of Williams' habeas corpus petition without
prejudice to renewal after exhaustion of available state court remedies
could jeopardize the timeliness of his exhausted claims.
Accordingly, under the holding of Zarvela v. Artuz,
254 F.3d 374 (2d Cir. 2001), a stay of the exhausted claims in Williams'
habeas corpus petition, pending the resolution of the unexhausted claims
in the state courts, is mandated. See, Id. at 380-82.
A stay of the petition avoids the procedural obstacles that would arise
if Williams were to withdraw his petition and resubmit it at a later
date, or have his resubmitted petition treated as a second or a
successive petition. Cf. 28 U.S.C. § 2244(b), (d). To avoid this,
adjudication of the exhausted claims presented in Williams' habeas corpus
petition is stayed, and his unexhausted claims are dismissed in order to
permit him to exhaust his remedies in the state courts.
The petitioner is directed to: (1) initiate state court proceedings
within 30 days of the entry of this Order; and (2) return to this court
within 30 days of the conclusion of those proceedings.