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DAVIS v. CONWAY

United States District Court, S.D. New York


September 2, 2004.

CURTIS DAVIS, Petitioner,
v.
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 therein.

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 state courts.

  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 successive petition.

  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.

  SO ORDERED.

20040902

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