Opinion
Case No. 05-CV-8440 (KMK).
May 18, 2007
Erry Rosas, Dannemora, NY, Pro Se Petitioner.
OPINION ORDER
Petitioner Erry Rosas ("Petitioner" or "Rosas") filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the Supreme Court of the State of New York in Bronx County. Rosas filed a so-called "mixed petition," meaning that it contains exhausted claims and one unexhausted claim. Before the Court is Petitioner's Motion to Stay the Petition and Hold in Abeyance his exhausted claims so that he can exhaust his unexhausted claim in state court. Respondent declined to oppose Petitioner's Motion. For the reasons that follow, Petitioner's Motion to Stay the Petition and Hold in Abeyance his exhausted claims is GRANTED.
"Under Second Circuit law, a court faced with a mixed petition must determine whether it is appropriate, on one hand, to dismiss the petition in its entirety, or, on the other, to dismiss the unexhausted claims, pending further state proceedings, while staying action on the exhausted claims." Diaz v. Smith, No. 04 Civ. 1337, 2004 WL 2360140, at *1 (S.D.N.Y. Oct. 19, 2004); see also Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001). However, if dismissal would "jeopardize the timeliness of a collateral attack" the district court should stay the petition. Zarvela, 254 F.3d at 380. That is because the Court must consider both the timeliness of any subsequent petition and the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") on second or successive petitions. Id. at 381-82. A stay "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005).
On October 10, 2003, Petitioner was denied leave to appeal to the New York Court of Appeals for issues raised on direct appeal, and ninety days later, Petitioner failed to seek review from the U.S. Supreme Court. Thus, Petitioner's conviction became final on January 8, 2004. These events triggered the start of the one-year statute of limitations clock under the AEDPA. See 28 U.S.C. § 2244(d)(1). Subsequently, on May 7, 2004, Petitioner filed his first postconviction motion in New York Supreme Court attacking the judgment of his conviction on various grounds pursuant to N.Y. Crim. Proc. Law § 440 ("Section 440"). On January 14, 2005, the New York Appellate Division denied Petitioner leave to appeal, thus exhausting these claims. See Brooks v. Walker, No. 9:01CV760, 2006 WL 1875103, at *8 (N.D.N.Y. July 3, 2006) ("To fully exhaust a CPL § 440 motion in state court, a party must obtain a decision from the Appellate Division regarding his leave application."). On July 7, 2005, Petitioner filed a second Section 440 motion — which is the unexhausted claim that has prompted this Motion — arguing that he received ineffective assistance of counsel during plea negotiations.
Because Petitioner did not file a petition for certiorari to the U.S. Supreme Court, his conviction became final ninety days after the New York Court of Appeals declined to review his case. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003).
Petitioner argued that he received ineffective assistance of counsel at trial for several reasons. He also argued that the indictment failed to specify with adequate particularity the dates on which the alleged crimes were committed.
Because Petitioner's conviction became "final" for AEDPA purposes on January 8, 2004, approximately 294 days have run on the statute of limitations up to the date that Rosas filed his petition in this Court. Rosas's federal habeas petition, which he filed on September 30, 2005, re-started the AEDPA statute of limitations clock, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001), meaning that Rosas had seventy-one days from September 30, 2005 to beat the statute of limitations. Obviously, Rosas has run out of time under the AEDPA, since the one-year limitation expired on December 10, 2005. Therefore, a decision by this Court to dismiss Rosas's petition in its entirety would bar Rosas from asserting any of his claims. See Diaz, 2004 WL 2360140, at * 1. Under these circumstances, the Second Circuit has stated that a stay should be granted, see Zarvela, 254 F.3d at 380-82, as long as Petitioner shows that there was good cause for his failure to exhaust his claims in state court and that his claims are not plainly meritless, see Rhines, 544 U.S. at 274.
One-hundred twenty days elapsed from the time Rosas's conviction became final on January 8, 2004, and the date he filed his first post-conviction motion in state court on May 7, 2004. One-hundred seventy-four days elapsed between the date Rosas's first motion was denied, on January 14, 2005, and his second Section 440 motion was filed on July 7, 2005. Combined, Rosas has run 294 days off of the AEDPA clock, which includes time tolled while he had a postconviction motion pending in state court.
For the reasons that follow, the Court finds that Petitioner has shown good cause for failing to exhaust his claim in state court and that his claims are not plainly meritless. Rosas states that he filed the second Section 440 petition after he read Justice Saxe's opinion in People v. Garcia, 795 N.Y.S.2d 216 (N.Y.App.Div. 2005), which Rosas says was published in The New York Law Journal. In Garcia, Justice Saxe held that a hearing was necessary to determine whether the defendant would have accepted a plea agreement had the trial court not incorrectly assumed that the defendant was a persistent violent felony offender. Id. at 216-21. During plea negotiations in Rosas's case, the Assistant District Attorney assigned to the case offered Rosas a plea deal on the assumption that he was a predicate felon, which, if true, would have enlarged the term of imprisonment in the offer. Petitioner's claim is not identical to the one raised in Garcia, but it is substantially similar: Petitioner argues that it was ineffective assistance for his counsel not to seek a hearing to clarify his status as a predicate felon, because if he prevailed after such a hearing, he might have been offered a better plea deal.
Next, the Court must consider whether Rosas's claims lack any merit. Based on Petitioner's moving papers, and Justice Moore's opinion in People v. Rosas, No. 3751/97 (N.Y. Supp. Ct. Mar. 5, 2007), the Court concludes that Petitioner's claims are not "plainly meritless[,]" Rhines, 544 U.S. 269, although they may ultimately prove to be without merit, see Roman v. Donelli, No. 9:06CV0230, 2007 WL 1074562, at *2 (N.D.N.Y. Apr. 9, 2007). Therefore, the Court will grant Petitioner's Motion in accordance with the following conditions.
Although Justice Moore denied Rosas's motion to set aside his judgment of conviction, the Court takes the view that Rosas has advanced arguments which are not plainly meritless, which is a very low threshold. In addition to rejecting Rosas's claims on the merits, Justice Moore held that Rosas's second Section 440 petition was procedurally barred by N.Y. Crim. Proc. Law §§ 440.30[1], 440.10(3)[c]. See Rosas, No. 3751/97, slip op. at 23. Ultimately, this Court may lack the authority to review Rosas's second Section 440 petition. See Rosario v. Bennett, No. 01 Civ. 7142, 2002 WL 31852827, at *21 (S.D.N.Y. Dec. 20, 2002) ("Moreover, district courts in this Circuit have consistently held that C.P.L. § 440.10(3)(c) constitutes an adequate and independent state ground barring habeas review."). But see Velez v. Ercole, No. 06 Civ. 334, 2006 WL 2742046, at *4 (S.D.N.Y. Sept. 26, 2006) ("Because § 440.10 motions can be brought at any time after entry of judgment, this avenue of relief remains open and petitioner is not procedurally barred from pursuing it."); Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at *9 n. 9 (S.D.N.Y. July 13, 2001) (same). In the interest of comity, this Court will defer any further discussion of Rosas's claim until it is appropriate for the Court to do so.
The Second Circuit has instructed that when a district court elects to stay a petition it "should condition the stay on the petitioner's initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited period, normally 30 days" after the state court exhaustion is complete. Zarvela, 254 F.3d at 380. Here, Petitioner has one step left in the state court system to exhaust his claim: an appeal to the New York Appellate Division. In accordance with the Second Circuit's decision in Zarvela, Petitioner is ordered to return to this Court within 30 days after he has exhausted his second Section 440 claim and must move to amend his Petition to include his newly exhausted claim. Should Petitioner choose not to proceed in this manner, the stay as to his exhausted claims may be vacated nunc pro tunc as of the date of this Order. Id. at 381.
If, for some reason, Petitioner decides that he does not want to exhaust his second Section 440 claim so that this Court can review it, he must notify the Court in writing of his decision within thirty days of the date of this Order.
SO ORDERED.