The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
Petitioner, William Bryant ("Bryant"), filed a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on July 31, 2002. Respondent
filed an affidavit in opposition on November 2, 2005. On November
7, 2005, Bryant asked the Court to hold his petition in abeyance
for two years in order to give him an opportunity to exhaust
additional claims in the state courts or grant him permission to
withdraw the petition and re-file once he exhausted all state
remedies. For the reasons that follow, Bryant's request is
Under 28 U.S.C. § 2254(b), a federal court may not consider a
petition for habeas corpus unless the petitioner has exhausted
all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The
exhaustion doctrine requires a habeas petitioner challenging a
state conviction on federal grounds to have presented his or her
claims to the state courts first. See Daye v. Attorney Gen. of
New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert.
denied, 464 U.S. 1048 (1984). In Rose v. Lundy, 455 U.S. 509,
522 (1982), the Supreme Court established that district courts
"must dismiss habeas petitions containing both unexhausted and
exhausted claims." In 1996, with the Antiterrorism and Effective Death Penalty Act
("AEDPA"), Congress significantly altered the proceedings for
habeas corpus petitions, imposing a one-year statute of
limitations and minimizing the grounds for second and successive
petitions. 28 U.S.C. § 2244. See Zarvela v. Artuz,
254 F.3d 374, 379 (2d Cir.), cert denied sub nom Fischer v. Zarvela,
534 U.S. 1015 (2001). In 2001, the Second Circuit Court of
Appeals recognized that many petitioners mistakenly filing "mixed
petitions" which were dismissed under Lundy would lose all of
their claims "because the one-year limitations period will likely
expire during the time taken to initiate state court exhaustion
and to return to federal court after exhaustion is completed."
Petitioners like Bryant whose petitions have been pending for
some time in federal court face the same predicament. Having only
now decided to raise new claims, if Bryant's petition is
withdrawn to allow him to exhaust those claims, any new petition
he files will likely be barred by the one-year statute of
limitations. While a habeas petition is pending in federal court
the one-year statute of limitations is not tolled, id.
(citing Duncan v. Walker, 531 U.S. 991 (2001)), though it is
while state court post-conviction relief is pursued.
28 U.S.C. § 2244(d)(2).
To ameliorate this outcome, the Court of Appeals determined
that the "only appropriate course . . . where an outright
dismissal `could jeopardize the timeliness of a collateral
attack,'" would be to dismiss the unexhausted claims and stay the
proceedings on the exhausted claims until the petitioner either
pursued exhaustion or dropped his unexhausted claims. Zarvela,
254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577
(7th Cir. 2000)). Addressing Congress's concerns, as expressed in
the AEDPA reforms, that a petitioner might "take an undue amount
of time to pursue state court remedies," the Court indicated that
a stay of proceedings in such a case should be conditioned on allowing the petitioner a
limited period to initiate exhaustion, and a similarly limited
time to return to the district court once the claims are
exhausted. Id. at 380-81 (suggesting thirty-day intervals).
The Supreme Court recently ruled on the legality of the
stay-and-abeyance procedure. Rhines v. Weber, 125 S.Ct. 1528
1535-36 (2005). For the most part, the Court approved of the
process. Id. at 1535. However, the Court outlined some
additional requirements a petitioner must meet in order to be
granted a stay of a habeas petition while exhausting state
remedies for new claims:
Because granting a stay effectively excuses a
petitioner's failure to present his claims first to
the state courts, stay and abeyance is only
appropriate when the district court determines there
was good cause for the petitioner's failure to
exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims
are plainly meritless.
Id. (citing 28 U.S.C. § 2254(b)(2) ("An application for a
writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State")). Bryant has not
shown good cause for failing to exhaust his new claims in the
state courts, nor has he described these unexhausted claims.
Without this information, the Court cannot grant a stay and
abeyance or determine whether his unexhausted claims have any
merit. At the same time, if Bryant withdraws the instant petition
and re-files after exhausting the new claims, any new petition
will be well outside the one-year statute of limitations.
Therefore, Bryant's request is DENIED without prejudice to
re-filing a similar request by December 15, 2005, together with a
showing 1) of good cause for failure to exhaust these claims, and 2) that the new claims are not plainly meritless.
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