UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
September 28, 2007
JOSE TORRES, PETITIONER,
HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: William M. Skretny United States District Judge
Currently before the Court are Petitioner's pro se Motions to Stay the instant Habeas Corpus Petition. (Docket Nos. 9 and 14). Petitioner's First Motion to Stay was filed on October 23, 2006. (Docket No. 9). He filed an "Amendment" to that Motion on January 9, 2007. (Docket No. 13). In that Motion, Petitioner requested the Petition be held in abeyance in order to allow him to fully exhaust his state court remedies regarding an ineffective assistance of appellate counsel claim currently raised in the Petition. (Docket No. 1, Petition, ¶ 12A--Ground One). At the time of filing the Motion, Petitioner was awaiting a decision from the New York Court of Appeals on his application for an extension of time to seek leave to appeal from the denial of a Writ of Error Coram Nobis raising the ineffective assistance of appellate counsel claim. (Docket. Nos. 9 and 13).*fn1
On June 6, 2007, Petitioner filed the Second Motion for a Stay so that he could exhaust state court remedies with respect to a "newly discovered evidence claim of actual innocence." (Doc. No. 14). Petitioner's Second Motion for a Stay also requests permission to amend the Petition to include the unexhausted claim of actual innocence.
In his "Affirmation in Support for Stay and Amend Petition," Petitioner notes that the New York State Court of Appeals denied his request for leave to appeal from the denial of his Writ of Error Coram Nobis on May 1, 2007. (Doc. No. 14, ¶ 3).*fn2 Petitioner has thus exhausted his state court remedies with respect to the ineffective assistance of counsel claim. Accordingly, Petitioner's First Motion for a Stay is moot and is DENIED as such.
With respect to Petitioner's Second Motion for a Stay and to amend the Petition to add a claim of actual innocence based on newly discovered evidence (Docket No. 14), Respondent shall submit a response to the Motion in the form of affidavits and briefs pursuant to Local Rule of Civil Procedure 7.1 by November 2, 2007. Petitioner may have until November 16, 2007 to submit a reply to the responding papers. The court will deem the matter submitted on November 16, 2007, and will issue a decision after review of the papers.
The Clerk of the Court is directed to forward a copy of Petitioner's Motion (Doc. No. 14) to the attorney appearing for the Respondent herein.
Buffalo, New York