The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. On October 24, 2011, Petitioner Henry Cox ("Petitioner") presented the Court with a habeas corpus petition pursuant to 28 U.S.C. § 2254, ECF No. 1.
The Court denied the petition without prejudice because it was a "mixed" petition, presenting both exhausted and unexhausted claims.
The Court provided Petitioner with four options for proceeding on the mixed petition, which it thoroughly described, and directed him to choose how he wanted to proceed.The Court received Petitioner's response on June 6, 2012.
For the reasons stated below, the Court denies Petitioner's request for a stay with prejudice for failure to meet the requirements of Rhines v. Weber, 544 U.S. 269 (2005).
The issues raised in the petition included (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) repugnant verdicts, and (4) legal insufficiency of the evidence. The only claim Petitioner has exhausted is the claim of legal insufficiency of the evidence.
In a letter, dated May 1, 2012, Petitioner asked the Court to stay his entire petition, permitting him time to exhaust his unexhausted claims, or in the alternative Petitioner asked that the Court allow him to withdraw his entire petition in order to exhaust his unexhausted claims.
First, Petitioner requests that the Court stay his entire petition permitting him time to exhaust his claims. In order to so, Petitioner must show that he meets the Rhines criteria. Rhinesrequires that, before granting a stay, Petitioner must show good cause for failure to exhaust his claims and that his claims are potentially meritorious. In Rhines, the Supreme Court stated: 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 abeyances 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.
Second, in the alternative, Petitioner requests that the Court allow him to withdraw his entire petition permitting him time to exhaust his claims. Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a one year statute of limitations is placed on applications "for a writ of habeas corpus by a person in custody pursuant to a State court judgment. The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the time "which a properly filed application for State post-conviction or other collateral review . . . is pending . . .," 28 U.S.C. § 2244(d)(2). However, the pendency of a federal habeas corpus petition does not toll the statute of limitations, See Rhines, 544 U.S. at 274-275 (stating, "Although the limitations period is tolled during the pendency of a 'properly filed application for State post-conviction or other collateral review,' § 2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations) (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Duncan 533 U.S. at 173-174 (stating, "Congress did not intend properly filed applications for federal review to toll the limitations period.").
Petitioner only raised one claim on direct appeal-the insufficiency of evidence claim. Two of Petitioner's claims, the ineffective assistance of trial counsel and repugnant verdict claims, were raised in a New York Criminal Procedure Law section 440.10 motion. The last claim, ineffective assistance of appellate counsel, was neither raised on direct appeal nor in the section 440.10 motion. The Second Circuit has held that federal courts have no authority to declare as a matter of state law that an appeal from the denial of [a] Section 440.10 motion is unavailable or that [Petitioner] cannot raise the ineffective assistance claim in a new Section ...