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denying request for stay without prejudice to renew upon a showing of good cause for petitioner's failure to exhaust the new claims, that the claims either relate back to the originally pled claims, or petitioner was not able to raise the new claims in the original petition, and that the new claims are "potentially meritorious" on federal habeas corpus review
Summary of this case from Beard v. UngerOpinion
05 Civ. 1850 (BSJ) (DF).
July 22, 2005
MEMORANDUM AND ORDER
Pro se Petitioner Howard Faden ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on January 12, 2005. (Dkt. 1.) On March 1, 2005, Petitioner filed an amended petition, dated February 23, 2005. (Dkt. 3.) Respondent has not filed a response to either the petition or the amended petition.
Although the Petition was not docketed until February 25, 2005, Plaintiff signed it on January 12, 2005, and, where a pro se plaintiff is incarcerated at the time a suit is commenced, the date on the pleading itself is generally considered the filing date. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) ( pro se prisoner litigant's complaint considered "filed" as of date of delivery to prison officials for transmittal to court), modified on other grounds, 25 F.3d 81 (2d Cir. 1994).
By letter dated July 16, 2005, Petitioner has now asked the Court to stay the petition, pending exhaustion of the claim(s) he has raised before the state court on a motion under N.Y. Crim. Proc. Law § 440.10. Respondent does not object to Petitioner's request for a stay.
In Zarvela v. Artuz, the Second Circuit suggested that, in the Court's discretion, it may be preferable to stay federal habeas proceedings, rather than dismiss timely-filed exhausted claims, merely because the petitioner had not yet been able to exhaust other claims raised in the same petition. See 254 F.3d 374, 380-82 (2d Cir. 2001); see also Davis v. Artuz, No. 00 Civ. 2874 ((RCC)(KNF), 2003 WL 22271191 (S.D.N.Y. Sept. 30, 2003) (relying on Zarvela in staying a habeas proceeding pending exhaustion of a claim newly raised by petitioner on a Section 440.10 motion). The Supreme Court has approved the use of such a stay in limited circumstances. See Rhines v. Weber, 125 S. Ct. 1528 (2005) (cautioning that, even where good cause exists for a petitioner's failure to exhaust his claim in state court, a federal habeas proceeding should not be stayed pending exhaustion when the claim is "plainly meritless").
In this case, Petitioner has not even informed the Court of the nature of the claim(s) he now seeks to exhaust. Accordingly, Petitioner's motion to stay these proceedings is denied, without prejudice to renew upon an adequate showing (1) of good cause for Petitioner's failure to exhaust the new claim(s); (2) that the claim(s) either relate back to Petitioner's originally-pleaded claims, or that Petitioner was unable to raise the additional new claim(s) in his original petition; and (3) that the claim(s) is/are potentially meritorious as a federal habeas claim.
SO ORDERED.