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United States District Court, S.D. New York

September 13, 2005.

T. Ricks, et al. Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


This habeas corpus proceeding was filed on December 10, 2001, and referred to Magistrate Judge Katz for a Report and Recommendation. The response to the Petition was filed on May 21, 2002. On August 30, 2002, Petitioner filed a motion to withdraw his Petition so that he could return to the New York courts to exhaust his claims. This Court granted the motion, and the action was closed without prejudice to renew following exhaustion of Petitioner's claims. (See Memorandum Endorsed Order, dated Sept. 11, 2002; Judgment, dated Sept. 18, 2002.) The Court was unaware, however, that prior to my granting the motion to withdraw the Petition, Magistrate Judge Katz had advised Petitioner that the withdrawal of his Petition might result in any subsequent petition being time-barred; moreover, it appeared that Petitioner had exhausted his claims. Petitioner therefore requested, subsequent to the dismissal of the action, that this action be stayed rather than dismissed so that he could return to the state courts to exhaust four new claims relating to the purported ineffectiveness of his appellate counsel. (See Letter dated Sept. 23, 2002.) Respondent opposed such a stay. (See Letter from Assistant District Attorney Argiro Kosmetatos, dated Oct. 7, 2002.) Petitioner's stay application was never acted upon, however, because the action had already been dismissed. Nevertheless, Petitioner has continued to notify the Court of changes in his mailing address, and thus appears to believe that his original habeas proceeding is still pending in this Court. He has not communicated with the Court in any other fashion since the dismissal of the action three years ago.

While it appears that Petitioner ultimately sought to stay, rather than dismiss, this action, in order to accurately determine Petitioner's intentions with respect to continuing this action, by October 3, 2005, Petitioner shall advise the Court in writing whether it is his intention to proceed with this action, and therefore requests its reinstatement. If he does so, the action will be reopened and deemed fully submitted. There will be no further stay of this proceeding, as (1) in the three years since the action was dismissed, Petitioner has failed to request any relief from the Court, including an amendment of the Petition to reflect any newly exhausted claims; (2) a further stay would "frustrate ? AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines the goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition," Rhines v. Weber, ___ U.S. ___, 125 S. Ct. 1528, 1534 (2005); and (3) any new claims alleging ineffective assistance of appellate counsel would clearly be time-barred, since they are unrelated to the claims in the original Petition and, thus, would not relate back to the original filing date of the Petition. See Mayle v. Felix, ___ U.S. ___, 125 S. Ct 2562, 2573-74 (2005) ("If claims asserted after the one-year limitation period could be revived simply because they relate to the same trial, conviction, or sentences as a timely filed claim, AEDPA's limitation period would have slim significance.").



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