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LINARES v. PEOPLE/STATE OF NEW YORK

United States District Court, S.D. New York


June 25, 2004.

OLAVI LINARES, Petitioner,
v.
PEOPLE OF THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM AND ORDER

In April 2004, Olavi Linares ("Linares"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petition states that two of the four claims raised in Linares' petition — grounds B & C ("unexhausted claims") — have never been presented to the state courts for adjudication. According to the petition, the other two claims — grounds A & D ("exhausted claims") — were raised by Linares on direct appeal from his conviction and were rejected by the New York State Supreme Court, Appellate Division, First Department. On August 22, 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 Linares' 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 Linares' 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 Linares 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 Linares' 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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