United States District Court, S.D. New York
July 9, 2004.
EDUARDO ALLISON, Petitioner,
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
(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.
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