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King v. Phillips

October 3, 2006


The opinion of the court was delivered by: Garaufis, United States District Judge



In the instant motion, Petitioner Bruce King ("Petitioner" or "King") moves for a reconsideration of his application for a stay and abeyance, to amend his Petition, and for an extension of time to respond to Respondent Attorney's August 23, 2005 Affidavit and Memorandum of Law. For the reasons set forth below, Petitioner's request for a stay and abeyance is DENIED. Petitioner's request to amend his Petition is DENIED in part and ALLOWED in part. Finally, Petitioner's request for an extension of time is ALLOWED.


Knowledge of the factual background of this Petition is presumed. On August 19, 1997, a judgment of conviction was entered against Petitioner in Queens County Supreme Court. Petitioner appealed this judgment to the New York State Appellate Division, Second Department, which affirmed his conviction on April 15, 2002. People v. King, 291 A.D.2d 413 (2d Dep't. 2002). Petitioner thereafter sought leave to appeal to the New York Court of Appeals, and was denied on July 12, 2002. People v. King, 98 N.Y.2d 677 (2002). Petitioner then filed a motion to set aside the verdict in his case pursuant to New York Criminal Procedure Law § 440 ("440 motion"). The Appellate Division dismissed his 440 motion without prejudice on November 6, 2003 in order for the Petitioner to supply exhibits and memorandum of law that were relied on in his application but not included in the submission. On November 21, 2003, Petitioner moved to re-argue the 440 motion. After Petitioner's motion to re-argue was placed on the motion calendar, Petitioner withdrew the motion and stated that he would re-submit his 440 motion to vacate with a complete set of papers. However, instead of first re-submitting his motion to vacate, Petitioner filed the instant Petition for habeas corpus in this court on September 11, 2003.*fn1

Petitioner seeks habeas relief on four grounds in his original Petition. First, Petitioner alleges that he was deprived of the opportunity to challenge his purported unlawful arrest, illegal detention, unconstitutional search, and suggestive identification procedure. Second, Petitioner claims that he was deprived of a fair trial due to misconduct by the Prosecutor and the police, and the Prosecutor's "subversion" of facts regarding Petitioner's arrest and identification procedure. Third, Petitioner argues that his conviction was obtained by the Prosecutor's use of false evidence and his counsel's ineffective representation. Fourth, Petitioner urged that his right to a speedy trial was violated; that the trial jury was wrongfully influenced by the prosecution at trial; and that his Sixth Amendment Confrontation Clause rights were violated at trial.

After filing the habeas corpus Petition, Petitioner then re-submitted his 440 motion to vacate on May 31, 2005, with accompanying exhibits and memoranda. In a letter dated June 7, 2005, Petitioner notified this court of his resubmitted 440 motion to vacate and requested a stay and abeyance to exhaust these unexhausted claims.

On June 27, 2005, I issued an Order that, among other things, denied without prejudice Petitioner's application for a stay and abeyance that would have allowed him to exhaust his unexhausted claims in state court. On November 4, 2005, Petitioner filed a motion that asked me to vacate my June 27, 2005 Order and to stay and hold in abeyance his Petition. Petitioner supplied a proposed Amended Petition to this court on February 16, 2006. Petitioner acknowledges in his Amended Petition that proposed amended claims four, five, six, seven, eight, and nine are currently unexhausted and pending before the state court in the resubmitted 440 motion to vacate. (Am. Pet. for Habeas Corpus.)


Although pro se Petitioner's present motion indicates that it is a motion for reconsideration, the motion's substance makes it clear that Petitioner sought to file a renewed motion for stay and abeyance, and so, the court will consider the present motion as such.*fn2 See Castro v. United States, 540 U.S. 375, 381-82 ("Federal courts can sometimes ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. . . . They may do so in order to . . . create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis.") (citations omitted); see also United States v. Detrich, 940 F.2d 37, 38 (2d Cir. 1991). Furthermore, since Petitioner is filing pro se, I must judge his pleadings by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); accord Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments they suggest."), Hanlin v. Mithchelson, 794 F.2d. 834, 838-39 (2d Cir.1986) (citing Haines to support the principle that pro se pleadings are given a liberal construction).

A. Motion for Stay and Abeyance

1. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) petitioners must first exhaust their claims in state court before proceeding with their federal habeas petitions. See 28 U.S.C. § 2254(b)(1)(A). In addition, AEDPA imposes a one-year statute of limitations on habeas corpus petitioners. See 28 U.S.C. § 2244(d). Although the limitations period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review," the filing of a petition for habeas corpus in federal court does not toll the statute of limitations. See 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

The Supreme Court recently held that AEDPA limits the circumstances in which a district court may grant a motion for stay and abeyance of a Petition containing exhausted and unexhausted claims (a "mixed" petition). Rhines v. Weber, 544 U.S. 269, 277-78 (2005). The Court held that, "stay and abeyance is only appropriate when the district court determines there was good cause ...

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