Opinion
10 Civ. 8707 (HBP)
03-08-2012
KEMP McCOY, Petitioner, v. LEO BISCEGLIA, Superintendent, Respondent.
MEMORANDUM OPINION
AND ORDER
PITMAN, United States Magistrate Judge:
Petitioner, an inmate in the custody of the New York State Department of Correctional Services, commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, claiming that his conviction violated certain of his federally protected rights. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c).
On or about March 29, 2011, respondent moved to dismiss the petition on the ground that it was untimely. Although petitioner did oppose the motion, he subsequently sent me a letter dated August 24, 2011 in which he seeks to withdraw his habeas petition without prejudice. Although the letter is not entirely clear, petitioner appears to be saying that he seeks to overturn his conviction on the ground of actual innocence, that he believes he does not presently have adequate evidence of actual innocence and that he wanted to avoid the obstacles to filing a second habeas corpus petition should he succeed in obtaining evidence of actual innocence in the future.
Petitioner's August 24, 2011 letter is being docketed contemporaneously with this opinion and order.
Petitioner's application to withdraw his petition without prejudice is granted. Although respondent has already borne the burden of drafting the motion to dismiss the petition, granting petitioner's application to withdraw the petition will not prejudice respondent in any way. If petitioner ever attempts to re-assert the claims, respondent can simply re-file his currently-pending motion to dismiss. If, on the other hand, petitioner does succeed in acquiring sufficient evidence of actual innocence, considerations of Due Process may require that a renewed petition be considered on the merits regardless of the outcome of this petition. See generally Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010) ("A claim of actual innocence could provide a basis for excusing [a] late filing . . . ."); Whitely v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003) (Although the court declined to hold that there is an "actual innocence" exception to 28 U.S.C. § 2244's limitations period, it did hold that the summary dismissal of an actual innocence claim as time barred was error.); Triestman v. United States, 124 F.3d 361, 377-380 (2d Cir. 1997) (discussing "serious" constitutional concerns that would arise if AEDPA were interpreted to bar judicial review of certain actual innocence claims).
Accordingly, the petitioner's application to withdraw the petition without prejudice is granted. The Clerk of the Court is directed to mark this matter and the pending motion to dismiss (Docket Item 15) as closed. Dated: New York, New York
March 8, 2012
SO ORDERED
___________
HENRY PITMAN
United States Magistrate Judge
Copies mailed to:
Mr. Kemp McCoy
DIN 04-A-4686
Wyoming Correctional Facility
3203 Dunbar Road
P.O. Box 501
Attica, New York 14011-0501
Nancy Killian, Esq.
Assistant District Attorney
Bronx County
198 East 161 Street
Bronx, New York 10451