Opinion
No. 02 Civ. 2127 (LTS) (JCF).
April 24, 2002
ORDER
WHEREAS, a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, was transferred to this Court on March 11, 2002; and
WHEREAS, the Court has reviewed such petition; and
WHEREAS, a prisoner seeking to challenge a state court conviction by means of a petition to a federal district court for a writ of habeas corpus is first required to exhaust in the state courts any constitutional claim he seeks to present in federal court and, if one or more of his claims has not been fully exhausted, he will be considered to have filed a "mixed petition," the Court must either send him back to state court or afford him the opportunity to abandon his unexhausted claims and proceed only with his exhausted claims, Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001); and
WHEREAS, the petition indicates that there rem ains pending before a New York state court a claim concerning the challenged conviction; it is hereby
ORDERED, that the Clerk of Court is to place this action on suspense status pending resolution of Petitioner's state court proceeding; it is further
ORDERED, that Petitioner shall, report in writing to this Court the disposition of the claim pending before the state court within thirty (30) days of the state court's disposition of such claim; and it is further
ORDERED, that if Petitioner fails to comply with the conditions set forth above, the stay may be vacated nunc pro tunc as of the date of this order and the petition may be dismissed if Petitioner's time to file a habeas petition has otherwise expired under the Antiterrorism and Effective Death Penalty Act.