Opinion
01-CV-6099Fe.
June 23, 2004
DECISION AND ORDER
Introduction
Before the Court is petitioner's motion to reconsider the November 15, 2001 Order (Docket No. 19); respondent's motion to dismiss this 28 U.S.C. § 2254 habeas corpus action (Docket No. 17); and petitioner's request for an extension of the time to respond (Docket No. 18). For the reasons discussed below, each of the pending motions is denied.
Petitioner is directed to provide the Court an amended petition in which he sets forth all of his grounds for challenging his conviction.
Procedural History
In September 2003, petitioner wrote a letter to the Court, inquiring into the status of his petition and asking for clarification of the November 15, 2001 Order. Petitioner ended this letter with a request that the Court reconsider the November 15, 2001 Order. Respondent moved the Court to deny the motion to reconsider and dismiss the entire petition. Petitioner then request time to respond to the motion to dismiss.
Respondent ends his correspondence with a request to reconsider the November 15, 2001 Order. The letter, dated September 19, 2003, has now been docketed as a motion to reconsider for ease of reference (Docket No. 19).
Reconsideration Denied
To the extent that petitioner's letter inquiring about the November 15, 2001 Order (Docket No. 12) can be viewed as a motion to reconsider the grant of the stay, such a motion is denied. Petitioner had requested, and was granted, the stay of the proceeding. Petitioner's request for a stay was based upon his recognition that he is required to raise all of his available claims against the conviction in a single petition, that all the claims must be exhausted, and the petition must be filed within one year of the conviction becoming final (extended only by whatever time is "tolled"). Moreover, in requesting a stay, petitioner indicated that he was pursuing additional state claims regarding a witness's recantation of testimony and ineffective assistance of trial counsel. The Court determined in its discretion to afford petitioner an opportunity to fully exhaust all of the claims he intended to raise in his single habeas corpus action, and granted the stay.
An interpretation of petitioner's pending pro se motion as a formal motion for reconsideration that would either dismiss the action or deny him the opportunity to raise all the federal challenges to his conviction is unwarranted and inappropriate. Accordingly, to the extent that petitioner has made a motion for reconsideration, the motion is denied.
Motion to Dismiss
In the November 15, 2001 Order the Court set out time requirements for petitioner's initiation of the state court challenges and his subsequent return to federal court. In the motion to dismiss the petition, respondent argues that, although petitioner clearly initiated his state court challenges to his conviction in a timely fashion, he did not return to federal court with the short time provided by the November 15, 2001 Order. The time periods set forth in the November 15, 2001 Order were intended to avoid an "endless" stay that would circumvent the requirements of 28 U.S.C. §§ 2244 and 2254. See Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). Petitioner, proceeding pro se, has been diligent in pursuing his claims and has regularly apprized the Court of his efforts and attendant difficulties in pursuing his legal claims: his segregated housing status, his limited English skills and his dyslexia. Additionally, petitioner has provided numerous exhibits relating to his efforts to exhaust his state court claims. (Docket No. 13, attached exhibits). These documents demonstrate petitioner's efforts to pursue state court claims. Petitioner has made a good faith effort to comply with the Court's directives. Moreover, the November 15, 2001 Order merely advised petitioner that the petition may be dismissed if the timeline were not followed; nothing in the Order constrains the Court to dismiss the entire petition now. Accordingly, respondent's motion to dismiss the petition is denied.
Stay is Lifted
Based on the representations in petitioner's papers, he is seeking a clarification of the November 15, 2001 Order. Petitioner is not requesting that his original request for a stay be denied, but rather is asking for clarification of which of his claims were dismissed as unexhausted. He maintains that his original claims are exhausted, because the federal aspects of his claims were raised on direct appeal. Moreover, respondent "makes no claim that petitioner has failed to exhaust state remedies" on the claims presented in the original petition (Answer, ¶ 19 (Docket No. 7)). Based on petitioner's discussion in the motion, it appears he is prepared to return to federal court on this action. Therefore, the stay is now lifted.
Amend the Petition
In the motion for reconsideration, petitioner discusses his original claims: 1. Trial Court violated his constitutional right to present evidence (Appellate Brief, Point One); 2. The evidence was insufficient to prove petitioner guilty of Murder in the second degree (Pro Se Brief, Point I); 3. The prosecution failed to disclose Brady material (Appellate Brief, Point II, and Pro Se Brief, page 13); 4. The jury instructions were improper (Appellate Brief, Point III; Pro Se Brief, Point VI); 5. Evidence was improperly admitted against petitioner (Pro Se Brief, Point III); and 6. Prosecutorial misconduct concerning a) bias of witnesses (Pro Se Brief, Point IV), and b) the prosecutor's summation (Pro Se Brief, Point V).
In the motion papers, however, petitioner is silent as to the additional claims that he wished to add to the original petition. It appears that petitioner's additional state court challenges are now completed. Therefore, to the extent that petitioner intends to raise the additional claims, he must file an amended petition in which he states each of the claims by which he challenges the conviction.
The amended petition is intended to completely replace the prior petition in the action. Therefore, petitioner's amended petition must include all of the claims in numbered sections, so that the amended petition may stand alone as the sole petition in this action which the respondent must answer. Petitioner is directed to use the petition form provided by the Clerk of the Court. Petitioner is directed to file the amended petition on or before August 2, 2004.
For clarity, petitioner should proved a simple statement of each claim in the format of the form. He may, if he so chooses, also cite to whether the claim was raised in the Appellate or Pro Se Brief, or in a 440 motion, but the petition itself should contain a brief statement of each claim.
Petitioner is advised that if he fails to file an amended petition, the action will go forward solely on the claims he raised in the original petition.
Conclusion
To the extend that petitioner's motion for reconsideration sought a denial of the request for a stay, such a request is denied. Respondent's motion to dismiss the petition is denied. Petitioner's request for an extension of the time to respond is denied as moot. The stay of the petition is lifted. Petitioner is directed to file an amended complaint by August 2, 2004.Order
IT HEREBY IS ORDERED, that petitioner's motion for reconsideration is denied;
FURTHER that respondent's motion to dismiss is denied;
FURTHER that petitioner's request for an extension is denied as moot;
FURTHER, that plaintiff is granted leave to file an amended petition as directed above by August 2, 2004;
FURTHER, that the Clerk of the Court is directed to send to plaintiff a copy of the original petition and a blank § 2254 petition form, together with this Order;
FURTHER, that in the event plaintiff fails to file an amended petition as directed above by August 2, 2004, the original petition shall be sole petition for the action and the basis for the ultimate determination of the habeas corpus proceeding.
IT IS SO ORDERED.