United States District Court, S.D. New York
June 25, 2004.
OLAVI LINARES, Petitioner,
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
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