United States District Court, S.D. New York
September 2, 2004.
CURTIS DAVIS, Petitioner,
JAMES T. CONWAY, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
In June 2004, Curtis Davis ("Davis"), proceeding pro se,
made an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. By order dated July 15, 2004, the respondent was
directed to file an answer or other pleading in response to the
petition, along with supporting documents, on or before August
26, 2004. The respondent now seeks an enlargement of the time in
which to respond to the petition or, in the alternative, a stay
of the petition pending the exhaustion of certain claims raised
According to the respondent, the claims in question were
previously raised in a motion made pursuant to New York Criminal
Procedure Law ("CPL") § 440.10; that motion was recently denied
by the trial court, and the petitioner has until September 4,
2004, to seek leave to appeal the denial. Since the claims raised
in Davis' CPL § 440.10 motion are unexhausted for the purposes of
habeas corpus review, the respondent requests that the petition
be stayed pending exhaustion of those claims in the relevant
A dismissal of Davis' habeas corpus petition without prejudice
to renewal after exhaustion of state court remedies could
jeopardize the timeliness of the petition, because any newly filed petition would be time-barred with respect to the
exhausted claims. Accordingly, under Zarvela v. Artuz,
254 F.3d 374, 380-82 (2d Cir.), cert. denied, 534 U.S. 1015,
122 S. Ct. 506 (2001), a stay of the exhausted portion of Davis' habeas
corpus petition, pending the exhaustion of state remedies
respecting his other claim(s), is mandated. A stay of the
petition avoids the procedural obstacles which would arise if
Davis were to withdraw his petition and resubmit it at a later
date, or have his resubmitted petition treated as a second or
Accordingly, adjudication of the claims presented in Davis'
original habeas corpus petition is stayed and the claims raised
in his CPL § 440.10 motion are dismissed in order to allow Davis
to exhaust his remedies in the state courts. Davis is directed to
return to this court within thirty (30) days after the conclusion
of state proceedings.
© 1992-2004 VersusLaw Inc.