Opinion
04-CV-6609Fe.
February 15, 2005
ORDER
Petitioner Jose L. Mercado, acting pro se, an inmate of the Attica Correctional Facility, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his conviction in Supreme Court, Wayne County, State of New York, was unconstitutionally obtained, as set forth more precisely in the petition. Despite having paid the filing fee, petitioner has requested permission to proceed in forma pauperis.
By order filed December 27, 2004, petitioner was ordered to show cause why his petition was not barred by the statute of limitations imposed on habeas petitions by 28 U.S.C. § 2244(d)(1) as amended on April 24, 1996. Petitioner filed a response to the order on January 4, 2005. In addition to the information petitioner provided regarding the tolling of the statute of limitations during the pendency of his collateral attack, the Court notes that the original petition is signed and dated August 16, 2004. A pro se prisoner litigant's papers are deemed to have been filed when they are placed in the hands of prison officials for mailing, see Houston v. Lack, 487 U.S. 266, 271 (1988); see also Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 (2d Cir. 1994). Therefore, the Court finds that petitioner has sufficiently set forth a claim of timeliness to survive this initial review.
Further, petitioner has requested a stay of the habeas proceeding, to permit him an opportunity to exhaust an issue regarding Apprendi v. New Jersey, 530 U.S. 466 (2000). He attached a copy of the writ of error coram nobis that he filed with the New York State Supreme Court, Appellate Division, and a copy of the denial. The Court accepts petitioner's motion and attachment as a supplement to his petition, adding the claim of ineffective assistance of appellate counsel, for the reasons set forth in the writ of error. The petition thus consists of his original petition together with the exhibits attached to his motion for a stay (Docket No. 7).
To fully exhaust his new claims, petitioner should seek leave to appeal to the New York State Court of Appeals, pursuant to CPL § 440.20. Because the petition at issue herein is a mixed habeas petition containing both exhausted and unexhausted claims, the Court may not grant it. 28 U.S.C. § 2254(b)(2). However, if the Court were to dismiss the entire petition without prejudice to petitioner's refiling it after he has exhausted all of his claims, he may find himself barred by the applicable statute of limitations. 28 U.S.C. § 2244(d)(1). For these reasons, the Court, in its discretion, will dismiss petitioner's unexhausted claims and stay the exhausted claims. See Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001). The exercise of such discretion is appropriate, the Zarvela Court held, "where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id., at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)). The Supreme Court's limitation of the statute's tolling provision to state proceedings counsels in favor of an approach protective of petitioner's access to federal court. See Duncan v. Walker, 531 U.S. 991 (2001).
This Court will exercise its discretion to stay proceedings with respect to petitioner's exhausted claims, and to dismiss without prejudice his unexhausted claims. If petitioner presents the unexhausted claims to the appropriate state courts and returns to this Court within the time limits set forth below, he will be permitted to amend his petition to reinstate the claims and such amendment will relate back to the date of the original petition. See Zarvela, 254 F.3d at 381-382.
This stay is conditioned on petitioner's return to the district court within 30 days of the completion of the effort to exhaust. If this condition of the stay is not met, this stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed. See id. Accordingly,
IT HEREBY IS ORDERED, that petitioner's request for permission to proceed in forma pauperis is granted;
FURTHER, that to the extent petitioner's supplemental claims in his petition are unexhausted, the claims are dismissed without prejudice subject to the condition that petitioner initiate efforts to exhaust these claims within 30 days of the filing of this order and that petitioner return to this Court within 30 days of the completion of the effort to exhaust;
FURTHER, that this petition is stayed pending petitioner's exhaustion of the dismissed claims;
FURTHER, that the Clerk of Court shall serve a copy of the petition (Docket No. 6), together with a copy of petitioner's response to the Court's order to show cause regarding the timeliness of the petition (Docket No. 9) and a copy of this order, by certified mail, upon respondent Superintendent of Attica Correctional Facility and upon the Assistant Attorney General in Charge, 144 Exchange Street, Rochester, New York 14614. To advise appropriate Wayne County officials of the pendency of this proceeding, the Clerk of Court shall also mail a copy of this order to the District Attorney of Wayne County. Because the action is stayed until petitioner exhausts his unexhausted claim, and files an amended petition, respondent is not required to file an answer at this time. Further scheduling of this action shall be made upon review of the amended petition.
PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR RESPONDENT.
SO ORDERED.