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ALLISON v. PEOPLE OF STATE OF NEW YORK

United States District Court, S.D. New York


July 9, 2004.

EDUARDO ALLISON, Petitioner,
v.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER

On April 23, 2004, I issued a Report and Recommendation stating that petitioner's unexhausted ineffective-assistance-of-counsel claim should be dismissed and the other three claims be stayed to permit petitioner to seek appropriate collateral relief in state court of his unexhausted claim.

The stay was issued subject to the following conditions:

(1) Within thirty (30) days of the date of the issuance of this Report and Recommendation, petitioner must file the appropriate motion in state court seeking collateral relief for his unexhausted ineffective-assistance-of-counsel claim under Section 440.10, or advise the Court that he wishes to proceed only on the exhausted claims; and
(2) within thirty (30) days after the state courts have completed their review of his ineffective-assistance-of-counsel claim, petitioner must file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition and a copy of the 440.10 motion.
(3) If petitioner elects to return to state court in connection with his ineffective-assistance-of-counsel claim, he is directed to submit a copy of his state court motion to this Court within forty (40) days of the date of this Report and Recommendation.
The Report and Recommendation also informed petitioner that:
if [he] fails to fulfill any of these conditions, I shall issue a Report and Recommendation recommending that the stay be vacated nunc pro tunc as of the date of this Report and Recommendation, and the petition be dismissed in its entirety. Zarvela v. Artuz, supra, 254 F.3d at 381 (footnote omitted) ([W]hen a district court . . . elects to stay [a mixed] petition, it should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. If either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed. . . .").
  On May 11, 2004, I issued an Order extending petitioner's time to file his 440.10 Motion in state court to June 14, 2004. On June 10, 2004, petitioner filed a 440.10 Motion in state court, and he filed a copy in federal court on June 15, 2004. Thus, petitioner has timely complied with the first portion of the April 23, 2004 Report and Recommendation. As previously stated in the April 23, 2004 Report and Recommendation, however, Petitioner still must notify the Court within thirty (30) days after the state courts have completed their review of his ineffective-assistance-of-counsel claim, and file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition. If petitioner fails to comply with this condition, I shall issue a Report and Recommendation recommending that the stay be vacated nunc pro tunc as of the date of the April 23, 2004 Report and Recommendation, and the petition be dismissed in its entirety.

  SO ORDERED.

20040709

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