UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
August 9, 2008
RICKY ORTA, PETITIONER,
ISRAEL RIVERA, SUPT. , RESPONDENT.
The opinion of the court was delivered by: William M. Skretny United States District Judge
DECISION and ORDER
By Order filed November 13, 2007 (Docket No. 18), the Court directed that, to the extent that the Fourth and Fifth grounds for relief raised in Petitioner's Amended Petition for a Writ of Habeas Corpus were unexhausted,*fn1 said claims were dismissed without prejudice, subject to the condition that Petitioner seek to exhaust the claims in state court and then immediately return to this Court upon exhaustion. Now before the Court is Petitioner's Motion to Vacate the Stay (Docket No. 19) on the basis that the New York State Supreme Court Appellate Division, Fourth Department, denied him leave to appeal from the denial of his N.Y.CRIM.PROC.L., § 440.10 motion ("§ 440.10") and Petitioner has thus exhausted his state court remedies with respect to the Fourth and Fifth grounds for relief raised in the Amended Petition.
IT IS HEREBY ORDERED, that Petitioner's Motion to Vacate the stay is granted, and the abeyance Order of November 13, 2007 (Docket No. 18), is hereby rescinded and the claims dismissed by that order are hereby reinstated in the Amended Petition. Respondent is directed to take whatever action is necessary to ensure that the official state court records of Petitioner's § 440.10 motion are provided to the Court as soon as possible;
FURTHER, that the Clerk of the Court is directed to detach the Amended Petition from the Renewed Motion for a Stay and Amend Petiton (Docket No. 12-2), and docket it separately as "Amended Petition"; and
FURTHER, that Respondent shall file and serve an answer and memorandum of law in response to the amended petition within 45 days after the receipt of this Order. Petitioner shall file a reply, if any, to the answer and memorandum of law within 30 days of the receipt of the answer and memorandum of law.
Buffalo, New York