United States District Court, N.D. New York
HAROLD BURROUGHS, JR.,
Petitioner pro se.
ALYSON J. GILL, Asst.
Attorney General for Respondent.
DECISION and ORDER
ANDREW T. BAXTER, Magistrate Judge.
Presently before the court is petitioner Harold Burroughs, Jr.'s motion to stay this action. Dkt. No. 9, Motion to Stay. In his motion, petitioner explains that on April 10, 2014, the Appellate Division denied a state writ of error coram nobis application, and that he is waiting for a decision from the New York Court of Appeals on his pending application for leave to appeal. Id. at 1. He also states that if his leave application is denied, he will ask that the claims raised in his coram nobis application be "consolidate[d]" into his pending habeas petition. Id.
When a district court is presented with a "mixed petition" containing both exhausted and unexhausted claims, it may dismiss the petition without prejudice or retain jurisdiction over the petition and stay further proceedings pending exhaustion of state remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005). Stays should be granted only in limited circumstances and only if the petitioner can show (1) "good cause" for failing to "exhaust his claims first in state court" and (2) that his unexhausted claims are not "plainly meritless." Rhines, 544 U.S. at 277-78.
Petitioner has not identified what claims the claims he raised in his writ of error coram nobis. But petitioner's statement that he intends to add the claims to his habeas petition suggests that they are different from those in his original petition. Therefore, the original petition does not appear to be "mixed" with respect to the claims contained in the coram nobis application, and granting a stay is inappropriate. Rhines, 544 U.S. at 277; Mills v. Girdich, No. 1:03-CV-0341, 2008 WL 4371362 at *1 (W.D.N.Y. Sept. 17, 2008); Hall v. Conway, No. 6:04-CV-6011, 2008 WL 2559371 at *1 (W.D.N.Y. Jun. 23, 2008). Petitioner's motion to stay is denied.
If petitioner intends to amend his habeas petition to include the claims raised in his coram nobis application, he must file a motion to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure and Local Rule 7.1 within thirty (30) days of the filing date of this Decision and Order. The motion to amend must also attach a complete proposed amended petition that raises both the claims now raised in his pending petition and the two new claims that petitioner wants to add. See Local Rule 7.1(a)(4) ("A party moving to amend a pleading pursuant to Fed.R.Civ.P. 14, 15, 19-22 must attach an unsigned copy of the proposed amended pleading to its motion papers. Except if the Court otherwise orders, the proposed amended pleading must be a complete pleading, which will supercede the original pleading in all respects. A party shall not incorporate any portion of its prior pleading into the proposed amended pleading by reference."). Any amended petition must also fully satisfy Rule 2 of the Rules Governing Habeas Corpus Proceedings, which provides:
(c) Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten, and
(5) signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
Rule 2 of the Rules Governing Habeas Corpus Proceedings in the United States District Courts. Petitioner must also address whether his amended petition is timely, and, if it is not, he should address the "relation back" requirement of Rule 15(c) of the Federal ...