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Washington v. Ercole

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


April 27, 2009

JOHN WASHINGTON, PETITIONER,
v.
ROBERT ERCOLE, RESPONDENT.

The opinion of the court was delivered by: Gold, S., U.S.M.J.

ORDER

John Washington filed a petition for habeas corpus in November, 2008.*fn1 Washington has filed an unopposed motion to stay his habeas petition to pursue collateral proceedings in state court, alleging that his trial counsel was ineffective for failing to object to a lineup with respect to differences in body type and skin tone. Docket Entry 6.*fn2

In ruling on petitioner's motion for a stay, I must undertake an analysis of the merits of the claim. Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 1535 (2005) (holding that it would be an abuse of discretion to grant a stay when the unexhausted claims are "plainly meritless"). Respondent, however, did not provide a copy of the videotape or still photographs of the lineup with his production of the state court trial record. I am therefore unable to assess whether petitioner's contention that his lineup was unduly suggestive -- because fillers had different body types and skin tones than petitioner -- is "plainly meritless." Accordingly, respondent is directed to produce copies of any videotapes and photographs of the lineup no later than May 15, 2009.

So Ordered.

Steven M. Gold United States Magistrate Judge


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