United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, District Judge.
On July 1, 2013, this Court dismissed, without prejudice, pro se petitioner Lewis Francois's action for a writ of habeas corpus. On July 25, 2013, Francois moved for reconsideration of the Court's dismissal Order. For the reasons set forth below, Francois's motion is granted insofar as affording him thirty (30) days from the date of this Memorandum and Order to advise the Court of whether he intends to delete the unexhausted claims from his habeas petition, and to proceed solely with the exhausted claims.
On October 19, 2012, Francois commenced this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Francois sought relief from his convictions in New York Supreme Court, Kings County, for second-degree murder and third-degree weapon possession, for which he received an aggregate, indeterminate prison sentence of from twenty-five years to life. Francois also requested leave to proceed in forma pauperis ("IFP"). (Doc. No. 1.) On November 7, 2012, the Court issued an Order to Show Cause directing the attorney for respondent Warden of Sullivan Correctional Facility ("the Warden") - either the Kings County District Attorney or the New York Attorney General - to show cause why the habeas corpus writ should not be issued. (Doc. No. 6.)
In duplicate letters filed on November 26, 2012 (Doc. Nos. 7-8), the Warden, represented by the Kings County District Attorney, requested dismissal of the petition. The Warden pointed out that, in state court, Francois had raised only three of the fourteen claims that he was advancing in support of his habeas petition, which rendered the majority of those claims unexhausted and procedurally barred. The Warden, therefore, asked that the petition be dismissed as a procedurally improper mixed-petition. ( Id., citing, inter alia, Rose v. Lundy, 455 U.S. 509, 522 (1982).)
On December 11, 2012, this Court granted Francois's request for IFP status. Further, the Court recognized that the lion's share of Francois's claims appeared to be unexhausted, rendering the habeas action a mixed-petition. The Court explained to Francois that, under these circumstances, it had the discretion to deny the entire petition on the merits, to allow Francois to delete the unexhausted claims and to proceed with the exhausted claims, to stay the petition while Francois exhausted the unexhausted claims, or to dismiss the petition in its entirety without prejudice so that Francois could exhaust his claims in state court. (Doc. No. 9.)
The Court declined to exercise its discretion to dismiss the entire petition on the merits or to grant a stay. The Court instead expressed its inclination to dismiss the petition without prejudice to allow Francois to exhaust his various state claims. However, out of an abundance of caution, the Court issued an Order to Show Cause directing Francois to respond within forty-five days as to why his petition should not be dismissed in its entirety as a mixed-petition, thereby according Francois an opportunity to delete his unexhausted claims. The Court warned Francois that his failure to respond within the allotted time would result in dismissal of his petition without prejudice. (Doc. No. 9.)
Subsequently, in a letter dated January 4, 2013, Francois requested an extension of his time to respond. (Doc. No. 12.) On January 25, 2013, the Court granted Francois a thirty-day continuance and set the new deadline for his response as February 25, 2013. (1/25/13 Order.) Once again, the Court warned Francois that his failure to respond in a timely fashion would lead to dismissal of the petition. ( Id. ) On January 28, 2013, the Court mailed a copy of its January 25th Order to Francois. (1/28/13 Docket Entry.)
Francois did not file a response to the Court's Order to Show Cause by the February 25th deadline, nor did he request an extension of his time to file that response. And, over the course of the next four months, Francois did not communicate with the Court or otherwise provide an update regarding the status of his habeas corpus petition. As a result, on July 1, 2013, the Court dismissed the petition without prejudice. (Doc. No. 13.)
Twenty-one days later, in a letter dated July 22, 2013 and mailed the following day, Francois moved for "reconsideration" of the Court's dismissal order. In that letter, which is currently at issue, Francois attributes his failure to comply with the Court's Order to his transfers between correctional facilities, his mental health disability, and his overall lack of legal knowledge and/or resources. (Doc. No. 15.)
Preliminarily, the Court notes that Francois had already requested - and the Court had granted - an extension of time ( see Doc. No. 12; 1/25/13 Order), and thus he was surely aware of the new deadline and fully capable of communicating with the Court. Yet Francois did not request or obtain an adjournment of the February 25th deadline, and failed to update the Court about the status of his petition for over four months.
Nonetheless, given Francois's pro se status and professed mental health disability, coupled with the fact that he was apparently transferred between correctional facilities during the time in question ( see Doc. No. 15), the Court will grant Francois's request.
Thus, within thirty (30) days from the date of this Memorandum and Order, petitioner shall Show Cause why his petition should not be dismissed in its entirety as a mixed petition for the reasons previously stated in the Court's Order to Show Cause dated December 11, 2012, a copy of which is attached hereto. This is the last opportunity for petitioner to show cause. ...