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WILLIAMS v. ARTUS

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 adjudication.

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 Appellate Division.

  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.

  SO ORDERED.


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