UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
January 5, 2007
DENNIS LARWETH, PETITIONER,
JOHN CONWAY, RESPONDENT.
The opinion of the court was delivered by: Honorable VICTOR E. Bianchini United States Magistrate Judge
DECISION AND ORDER
Petitioner, pro se, has filed a request to stay the instant petition for habeas corpus relief so that he canreturn to state court and raise a claim based on "new case law from the Court of Appeals concerning post release supervision" ("new claim"). (Docket No. 13). Petitioner does not state the basis of this claim nor does he provide any reason as to why he did not previously exhaust this claim in state court. For the reasons set forth below, petitioner's motion for a stay is denied without prejudice to refiling upon an adequate showing, pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005), that (1) there is good cause for petitioner's failure to exhaust the new claim prior to filing a petition for habeas corpus in this Court, and (2) that the new claim is not plainly meritless.*fn1
In addition, if petitioner decides to file a renewed motion for a stay he must also file a motion for leave to file an amended petition and a proposed amended petition, which includes both the claims filed in the initial petition and the new claim petitioner now wishes to exhaust in state court. The motion to for leave to file an amended petition must establish that the new claim relates back to the claims pled in the initial petition. See Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562 (2005)
In Rhines, the United States Supreme Court directly addressed the stay and abeyance approach utilized by a number of Circuits, including the Second Circuit, see Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied sub. nom. Fischer v. Zarvela, 536 U.S. 925 (2001). Zarvela allows a district court to exercise its discretion to stay proceedings with respect to a petitioner's exhausted claims, to dismiss without prejudice the unexhausted claims so that the petitioner canreturn to state court to exhaust the unexhausted claims, and then return to the district court to reinstate the previously dismissed claims. In Rhines, the Supreme Court approved the stay and abeyance approach but limited its use to only those situations where there was is a showing of "good cause" for the petitioner's failure to exhaust the claims in state court, provided that the unexhausted claims are not "plainly meritless." The Court also discussed a third factor, i.e., the petitioner had not "engage[d] in abusive litigation tactics or intentional delay." 544 U.S. at 278. Rhines, 544 U.S. at 277. See also Faden v. Annetts, 05 Civ. 1850 (BSJ) (DF), 2005 U.S. Dist. LEXIS 14910, at *2 (S.D.N.Y. July 26, 205) (denying request for stay without prejudice to renew upon a showing (1) of good cause for failure to exhaust the new claims, (2) the claims either relate back to the originally pled claims, or petitioner was unableto raise the new claims in the original petition, and (3) the new claims are "potentially meritorious" on federal habeas corpus review).
In the instant matter, petitioner has failed to establish the criteria for the granting of a stay as set forth in Rhines. Petitioner simply states there is "new case law from the Court of Appeals" and asks the Court to stay the petition to allow him to again go back to state court and exhaust this new claim. (Docket No. 13). Petitioner offers no justification for not previously exhausting this claim*fn2 and provides nothing in support of this claim which would allow the Court to make a preliminary determination as to whether the claim is or is not "plainly meritless." Thus, petitioner's request for a stay of these proceedings must be denied.
Additionally, petitioner has not established in any way that the new unspecified claim he now seeks to exhaust is not barred by the statute of limitations, 28 U.S.C. § 2244(d)(1), because it"relate[s] back" to the claims pled in the original petition. See Fed.R.Civ.P. 15(a); Mayle, 545 U.S. at ----,125 S.Ct. at 2566 ("An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.") If petitioner files a renewed motion for a stay as set forth herein, he must also file a motion for leave to amend the petition and attach to said motion a proposed amended petition that includes both the claims pled in the initial petition and the new claim he now wishes to exhaust.
The Clerk of the Court is directed to send to plaintiff with this order a copy of the original petition, a blank Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus form, and a Form Motion and Instructions Packet.
Accordingly, petitioner's motion (Docket No. 13) to stay these proceedings is DENIED without prejudice to re-filing upon a adequate showing pursuant to Rhines, 544 U.S. at 277, that (1) there is good cause for petitioner's failure to exhaust the new claims, and (2) that the claim is not "plainlymeritless." Any additional motions to stay these proceedings must be filed no later than 30 days after petitioner's receipt of this Order. Moreover, shouldpetitioner file a renewed motion for a stay, he must also file no later than 30 days after receipt of this Order a motion for leave to file an amended petition and proposed amended petition. The motion must include both the claims raised in the originalpetition and the new claim he now wishes to exhaust.