United States District Court, S.D. New York
September 13, 2005.
CRAIG WHITFIELD, Petitioner,
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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