Opinion
Civil No. 97-CV-1901 (TJM/GLS).
February 3, 1999
RUPET NEISH, Plaintiff, Pro Se, Mohawk Correctional Facility, Rome, NY, For The Plaintiff.
New York State Department of Law, Litigation Bureau, Of Counsel, KEITH E. KAMMERER, ESQ., Albany, NY, For The Defendant.
ORDER
Currently before the court is petitioner's motion to stay his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The petitioner is currently serving concurrent sentences of six to eighteen years and two to six years for possession of a controlled substance. In his petition, he attacks the validity of his conviction claiming the improper: 1) denial of his constitutional right to proceed at trial, pro se; 2) admission of evidence relating to uncharged crimes; 3) consideration by the sentencing court of a statement written by him concerning an uncharged crime; and, 4) use of an over-broad search warrant. The petitioner now seeks to stay all proceedings while he makes a C.P.L § 440.10 motion (motion to vacate a judgment) in state court. He claims ineffective assistance of trial counsel as a ground for vacating his judgment of conviction. Apparently, this is a new claim that petitioner intends to include in his habeas petition if he is unsuccessful in state court. Knowing that an unexhausted claim is pernicious to habeas relief, he wants to stay his petition while he exhausts this new claim at the state level. The respondent does not object to this motion.
The ability of a court to stay a habeas petition has engendered a split among the different federal circuits. Two circuits have held that a district court lacks the ability to hold a petition in abeyance pending exhaustion of state remedies. Hill v. Mitchell, 1998 WL 897353, *2 (S.D.Ohio Dec. 21, 1998) (citing Calderon v. United States District Court for the Northern District of California, 134 F.3d 981 (9th Cir. 1998); Murray v. Wood, 107 F.3d 629, 632 (8th Cir. 1997); Victor v. Hopkins, 90 F.3d 276, 282 (8th Cir. 1996)). In fact, the Supreme Court has held that "a district court must dismiss habeas petitions containing both exhausted and unexhausted claims." Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Nonetheless, some courts have held that in exceptional circumstances a court may stay a habeas petition to allow a petitioner to exhaust all his claims. Id (citing Christy v. Horn, 115 F.3d 201, 207-208 (3rd Cir. 1997); Parker v. Johnson, 988 F. Supp. 1474 (N.D.Ga. 1998)).
However, the cases considered by all these courts involved petitions that included both exhausted and unexhausted claims. In this case, all claims currently included in the petition have been exhausted and petitioner has not attempted to incorporate his unexhausted claim. In this situation, the Supreme Court's mandate for dismissal would not apply because the petition contains no unexhausted claims. Furthermore, at least one other court has stayed a habeas petition in like circumstances. See, United States v. Peters, 837 F. Supp. 940 (C.D.Ill. 1993). Nonetheless, nearly all courts granting a stay did so where the petitioners had received death sentences. Surely, the death sentence is a type of exceptional circumstance that justifies a stay. Despite the seriousness of the petitioner's crimes, this case is not so exceptional as to warrant a stay. There is no possibility of execution, and the only possible concern is that the petitioner will not be allowed to file a successive petition. While this is a possibility, the court is not required to delay its decision while the petitioner takes a collateral issue through the long state exhaustion process.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that petitioner's motion to stay the proceedings is DENIED. It is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.