The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
Petitioner Daniel Wright filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging a judgment of conviction rendered in Madison County Court on charges of first degree rape and second degree assault. Dkt. No. 1 at 1. Petitioner's convictions were affirmed by the Appellate Division, Third Department, and the Court of Appeals denied leave to appeal on May 9, 2005. Id. at 2.
A response to the petition was filed on October 23, 2006. Dkt. No. 11.
On February 16, 2007, petitioner filed a traverse. Dkt. No. 19.
Presently before the Court is a request from petitioner that this matter be stayed. Dkt. No. 25. Petitioner states that he seeks a stay so that he may exhaust his state court remedies with respect to additional claims relating to a traffic accident report and the ineffective assistance of trial counsel. Id. at 3-4. According to petitioner, these additional claims were presented to the state court by motion pursuant to New York CPL § 440 filed on June 15, 2007. That motion was denied on July 23, 2007. Id. at 3-4.*fn1 At the time petitioner filed his motion to stay, he was seeking leave to appeal that decision to the Appellate Division, Third Department. Id. at 4.
Respondent opposes the stay on the grounds that petitioner has not established good cause for the stay and because his additional claims lack merit. Dkt. No. 26.
As the Second Circuit recognized in Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001), cert. denied, 534 U.S. 1015 (2001), the procedural complexities confronting a habeas petitioner proceeding under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are considerable. In cases such as this, where the petitioner seeks to pursue additional unexhausted claims in state court, as well as cases where the court is presented with a "mixed petition" containing both exhausted and unexhausted claims, the district court must consider both the timeliness of any subsequent petition and the impact of the AEDPA's limitations on second or successive petitions in determining the proper disposition of the petition.*fn2 The Second Circuit ruled in Zarvela, that when presented with a mixed petition, the district court may dismiss without prejudice or retain jurisdiction over the petition and stay further proceedings pending exhaustion of state remedies; however if dismissal would "jeopardize the timeliness of a collateral attack" the district court should stay the petition. Zarvela, 254 F.3d at 380. The Second Circuit went on to state that any stay must be "appropriately conditioned," so that a petitioner is not permitted "to take an undue amount of time to pursue state court remedies." Id.
The United States Supreme Court has since approved the stay and abeyance procedure, but with limitations. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). Specifically, the Supreme Court stated that stays should only be granted if the petitioner can show "good cause" for failing to exhaust all available state court remedies earlier and can also show that his unexhausted claims are not "plainly meritless." Rhines, 544 U.S. at 277. The Rhines Court stated that stay and abeyance should be available only in limited circumstances. 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.
Rhines, 544 U.S. at 277. The Rhines court also stated that if a petitioner "engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all." Rhines, 544 U.S. at 278.*fn3
As noted, petitioner seeks a stay to exhaust claims related to a traffic accident report which, according to petitioner, was "a key piece of evidence ... purposefully withheld from the defense that would have given the defendant a viable defense and possibly led to an acquittal of the defendant."
Dkt. No. 25 at 3. Petitioner appears to contend that the victim's injuries were not inflicted by him but, rather, occurred during a traffic accident involving petitioner and the victim. Petitioner claims that the prosecution failed to provide the accident report prior to trial. Id. Petitioner also argues that the accident report is "newly discovered" evidence of his innocence. Id.
In opposition to the stay, respondent argues that petitioner failed to demonstrate that he exercised reasonable diligence in pursuing the claims, and disputes petitioner's contention that the accident report is "newly discovered" evidence. Dkt. No. 26 at 3. As respondent notes, petitioner himself testified at trial regarding the traffic accident, and has offered no explanation for his claimed ignorance of the report or for his delay in pursuing this claim. Respondent also argues that any additional habeas claims relating to the traffic accident report are time-barred and that the request for a stay is therefore futile and must be denied for that reason as well.
As to the additional ineffective assistance of counsel claim, petitioner states only that his "lawyer was ineffective to a point that denied the defendant a fair trial, due to the lack of investigative tactics, proper experience [D.N.A.] medical expert and proper cross-examination of witness." Dkt. No. 25 at 4. Respondent opposes this aspect of petitioner's request for a stay because petitioner has failed to sufficiently articulate the nature of this claim or how it differs from the claim set forth in the petition. Dkt. No. 26 at 2.
Upon review, the Court denies petitioner's request for a stay. The Court finds that petitioner has not demonstrated "good cause" for his failure to exhaust these claims in state court prior to commencing this action. Moreover, in light of the fact that the state court denied petitioner's CPL § 440 motion in July, 2007, the Court considers it likely that the Appellate Division ...