Opinion
05 Civ. 3009 (RMB) (KNF).
February 16, 2007
MEMORANDUM AND ORDER
Jonathan Gibson ("Gibson"), proceeding pro se, has made a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Gibson seeks a stay of the adjudication of his petition for the writ so that he may return to the state courts to exhaust remedies available there with respect to the following claims: (1) no probable cause existed for the police to stop, frisk and arrest him; and (2) the trial court erred in sentencing him as a persistent violent felony offender. The respondent opposes the petitioner's request for a stay. In his reply to the respondent's opposition, Gibson has asked the Court to take judicial notice of an application for a writ of error coram nobis, he wishes to make in the New York State Supreme Court, Appellate Division, challenging the effectiveness of the assistance his appellate counsel rendered to him in connection with Gibson's appeal from his judgment of conviction. Gibson has not raised the ineffective assistance of the appellate counsel claim in the state courts previously and, until now, had not raised it in the instant petition for a writ of habeas corpus.
The pleadings of a pro se litigant must be construed liberally,see McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004); therefore, the Court has determined to treat the petitioner's reference to his coram nobis petition, in his reply, as a request to amend his habeas corpus petition to include, as a ground for relief, ineffective assistance of appellate counsel. The Court finds that it would be prudent and efficient to address the request to amend the petition before resolving Gibson's request for a stay of the adjudication of his application for a writ of habeas corpus. Therefore, on or before February 28, 2007, the respondent shall serve and file a response to the petitioner's request to amend the habeas corpus petition, and on or before March 21, 2007, any reply by the petitioner shall be served and filed.
SO ORDERED.