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
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.