The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
On June 28, 2005, Frederick Monroe applied for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. His application states that
he has no petition or appeal now pending in any court regarding
the judgment of conviction that he challenges. Elsewhere,
however, it indicates that he commenced a proceeding in New York
Supreme Court under Section 440.10 of New York's Criminal
Procedure Law, but it does not indicate the result of this
proceeding, if any, or whether he applied under Section 460.15 of
the Criminal Procedure Law to the Appellate Division for leave to
appeal the result, if any, of the Section 440.10 motion.
Moreover, in an appended letter addressed to the Clerk of Court,
the petitioner expresses concern about the statute of limitations
for federal habeas corpus applications and asks that his petition
be held in abeyance until he has exhausted avenues for post-conviction
relief in New York State Supreme Court. It thus seems likely that the
petitioner has not yet exhausted his remedies in state court, which
ordinarily would require dismissal of the petition.
It appears that if the Section 440.10 motion proves to be not
properly filed, the petitioner could be quite close to or already
at the end of the limitations period for § 2254 actions, which is
not tolled by the filing of such an action. See Duncan v.
Walker, 531 U.S. 991, 121 S. Ct. 2120, 150 L. Ed.2d 251 (2001).
The U.S. Supreme Court has explained that a "prisoner seeking
state postconviction relief might avoid" the predicament of
spending time seeking relief in state court only to learn, after
the federal limitations period has expired, that the application
in state court was not properly filed, "by filing a `protective'
petition in federal court and asking the federal court to stay
and abey the federal habeas proceedings until state remedies are
exhausted." Pace, 125 S. Ct. at 1813.
Most of the cases addressing whether a petition containing unexhausted
claims may be stayed rather than dismissed concern so-called "mixed"
petitions, in which some claims have been exhausted in state court and some
claims are raised for the first time in the federal habeas corpus
application. Here, however, even if some of the claims are being raised for
the first time in this petition a point on which the Court has formed no view none of them has
been exhausted in state court because the Section 440.10 proceeding still is
pending, so far as the Court can determine.
The Supreme Court has explained that "district courts do
ordinarily have authority to issue stays where such a stay would
be a proper exercise of discretion. AEDPA does not deprive
district courts of that authority, but it does circumscribe their
discretion. Any solution to this problem must therefore be
compatible with AEDPA's purposes" of "reduc[ing] delays in the
execution of state and federal criminal sentences." Rhines v.
Weber, 125 S. Ct. 1528, 1534, 161 L. Ed.2d 440 (2005) (citations
omitted). "Thus, district courts should place reasonable time limits on a
petitioner's trip to state court and back." Id. at 1535 (citing Zarvela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001)).
Because the federal limitations period may be close to or past
the expiration date, and the Court has no information on the
status of the state court proceeding, the Court, in the exercise
of discretion, will hold the petition in abeyance while the
petitioner pursues his Section 440.10 motion and, assuming denial
of relief, seeks leave to appeal under Section 460.15.
Accordingly, the case is transferred to the suspense docket. The
petitioner shall advise the Court within 30 days of the denial of
any Section 460.15 application, or the granting of any relief in
state court. If the petitioner does not so advise the Court, the
case will be subject to dismissal with prejudice. The Court
reminds the petitioner, who indicated that he has no petition or
appeal now pending in any court even though the contrary would
appear to be the case, that all statements in his petition are
made under penalty of perjury.
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