Opinion
03 Civ. 0908 (GBD) (DF).
April 18, 2005
MEMORANDUM AND ORDER
Pro se Petitioner Mark V. Green ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on January 16, 2003. (Dkt. 2.) Respondent filed an opposition to the petition on May 28, 2003. (Dkt. 7 9.)
Although the Petition was not docketed until February 7, 2003, Plaintiff signed it on January 16, 2003, 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 motion dated April 4, 2005, Petitioner has now asked the Court to stay the petition, pending exhaustion of a claim he has raised before the state court, on a motion under N.Y. Crim. Proc. Law § 440.30. Respondent has not objected to Petitioner's request for a stay.
Under Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir. 2001), a stay of proceedings in these circumstances would be appropriate. See id.; 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); McDonald v. Smith, 2003 WL 22284131 (JBW) (E.D.N.Y. Aug. 21, 2003) (holding that a Section 440.30(1-a) motion "is akin to a section 440.10 motion to vacate").
Accordingly, Petitioner's request for a stay is granted, and it is hereby ORDERED as follows:
1. Within 30 days after Petitioner has received a final decision from the state courts on his Section 440.30 motion, Petitioner must file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition.
2. If Petitioner fails to file such an affidavit or declaration in a timely fashion, this Court may vacate the stay nunc pro tunc as of the date of this Order, and may recommend dismissal of the petition.
3. This action is hereby transferred to the suspense docket of this Court pending further order of the Court.
SO ORDERED.