The opinion of the court was delivered by: Gustave J. Dibianco, U.S. Magistrate Judge
Presently before the Court is a motion to stay this action filed by Tony Jordan ("petitioner" or "Jordan").*fn1 Dkt. No. 25. A response to the motion was filed on June 10, 2008. Dkt. No. 28.
Petitioner filed this action on January 31, 2005. Dkt. No. 1. In his original habeas petition, Jordan complained of a January 31, 2003 judgment of conviction rendered in Albany County Court wherein petitioner was found guilty after a jury trial of two counts of criminal possession of a controlled substance and unlawful possession of marijuana. Petitioner asserted five claims in support of this petition.
1. Petitioner's conviction was obtained by use of evidence seized in an unlawful arrest.
2. Petitioner was denied a post-trial hearing.
3. Petitioner was denied his right to a speedy trial.
4. The prosecutor improperly stated that he offered Jordan a plea agreement prior to trial.
5. Petitioner was denied the right to testify before the grand jury.
Respondent answered the petition on June 15, 2005, and petitioner filed his traverse on August 3, 2006. Dkt. Nos. 11, 15.
B. Petitioner's Motion to Stay
Petitioner filed his motion to stay, or in the alternative to dismiss, on January 30, 2008. Dkt. No. 25. In the motion, petitioner seeks leave to return to the state courts to exhaust a claim of ineffective assistance of counsel. Petitioner's claim is based upon the factual premise that petitioner's defense counsel received a plea offer that was not communicated to petitioner. While this claim was not expressly stated in the original petition, it is referred to in respondent's memorandum of law in opposition to the petition (Dkt. No. 12, page 26), and in petitioner's traverse. Dkt. No. 15, pages 14-15.
Petitioner does not attach to his motion any support for the assertions regarding the alleged plea bargain that was offered to counsel, but not communicated to petitioner. However, attached to petitioner's original petition is an undated and unidentified excerpt from a transcript of a court proceeding in which it is stated that a plea agreement was communicated to counsel, but it was not presented to counsel's client because it had not been approved by the Court.*fn2 It is not clear from this excerpt whether petitioner was present at this proceeding. In addition, the Court notes that in the preliminary proceedings on the date of trial, petitioner made an oral motion to have his counsel relieved and to have new counsel appointed. The request from the petitioner was, in part, based upon assertions that counsel was angry with petitioner because petitioner would not accept a plea agreement. See Trial Transcript, pages 11-16. This oral motion followed the Court's statement of its understanding of the plea agreement that had been presented by the State. See Trial Transcript, page 7, Ln.3-16.
Respondents' response to the motion to stay indicates that, if the Court were to grant a voluntary dismissal, "any attempt to file a petition would not be untimely." Dkt. No. 27. Respondent directed the Court to an "accompanying memorandum of law' for a discussion of the basis for their arguments. However, no memorandum of law was filed with the response. ...