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Terry Washington, 04-B-2200 v. N. Bezio

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


March 22, 2011

TERRY WASHINGTON, 04-B-2200, PETITIONER,
v.
N. BEZIO, SUPERINTENDENT, *FN1 RESPONDENT.

The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Presently before the Court is petitioner's motion to stay his habeas corpus petition (Dkt. #7) so as to allow him to exhaust his ineffective assistance of appellate counsel claim, which was asserted in Ground Two of the petition (Dkt. #1, ¶12(B)). The instant motion to stay, filed August 26, 2010, states that petitioner filed an application in the Appellate Division, Fourth Department for a writ of error coram nobis with respect to the alleged ineffective assistance of appellate counsel issue, and petitioner attached to the instant motion a letter from the Appellate Division, Fourth Department, dated August 2, 2010, acknowledging receipt of his coram nobis motion papers. Dkt. #7,p.3; see also State Court Records filed Sept. 2, 2010, Appendix H (Petitioner's Motion for a Writ of Error Coram Nobis) and I (People's Coram Nobis Opposition Affirmation).

Petitioner's coram nobis application was summarily denied by the Appellate Division, Fourth Department on October 1, 2010, People v. Washington , 77 A.D. 3d 1456, 908 N.Y.S.2d 382, and the New York Court of Appeals denied petitioner's motion for leave to appeal on February 22, 2011 (Certificate Denying Leave). Because petitioner exhausted his state court remedies with respect to the ineffective assistance of appellate counsel claim, the Court finds that his request for a stay must be denied as moot. See Davis v. Graham , 06-CV-6569T, 2010 U.S. Dist. LEXIS 13693, at *7 (W.D.N.Y. Feb. 17, 2010) (motion to stay habeas petition to allow petitioner to return to state court to exhaust ineffective assistance of appellate counsel claim rendered moot by Appellate Division's summary denial of petitioner's application for coram nobis relief).

Within 60 days of receipt of this Decision and Order, the petitioner may file a reply to the response filed by respondent on August 31, 2010 (Dkt. #9).

SO ORDERED .

Dated: Buffalo, New York

H. Kenneth Schroeder, Jr.


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