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CHEBERE v. PHILLIPS

United States District Court, S.D. New York


May 11, 2004.

HECTOR CHEBERE, Petitioner, -against- WILLIAM PHILLIPS, et al, Respondent

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

MEMORANDUM AND ORDER

Pro se Petitioner Hector Chebere ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on September 6, 2003.*fn1 Respondent has been granted an extension of time to June 25, 2004 to respond to the petition (see Dkt. 5), and has not yet filed a response.

By letter dated May 1, 2004, Petitioner has now asked the Court to stay the petition, pending exhaustion of a claim he has raised before the state court, on a motion under N.Y. Crim. Proc. Law § 440.10. Respondent has not objected to Petitioner's request for a stay.

  Under Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir. 2001), a stay of proceedings in these circumstances would be appropriate. See id.; see also Davis v. Artuz, No. 00 Civ. 2874 (RCC)(KNF), 2003 WL 22271191 (S.D.N.Y. Sept. 30, 2003) (relying on Zarvela in staying a habeas proceeding pending exhaustion of a claim newly raised by petitioner on a Section 440.10 motion). Accordingly, Petitioner's request for a stay is granted, and it is hereby ORDERED as follows:

  1. Within 30 days after Petitioner has received a final decision from the state courts on his Section 440.10 motion, Petitioner must file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition.

  2. If Petitioner fails to file such an affidavit or declaration in a timely fashion, this Court may vacate the stay nunc pro tunc as of the date of this Order, and may recommend dismissal of the petition.

  3. This action is hereby transferred to the suspense docket of this Court pending further order of the Court.

  SO ORDERED


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