Opinion
99 Civ. 11306 (JSR) (AJP)
February 3, 2000
OPINION AND ORDER
Petitioner Aramas's habeas petition is dated September 11, 1999 but was not received by the Court's Pro Se office until October 15, 1999, and the Court cannot determine when Aramas gave the petition to prison authorities to mail. (See Dkt. No. 1: Petition.) The Petition raises a single claim — that Aramas's conviction was obtained in violation of the Confrontation Clause. (Pet. ¶ 12(A).) The Government's time to respond to the petition was extended until February 24, 2000. (Dkt. No. 5: 1/3/00 Memo Endorsed Order.)
By letter application sworn to January 18, 2000 (postmarked January 28, 2000 and received by the Court on January 31, 2000), Aramas seeks to have the Court hold his petition in abeyance to enable him to return to state court to bring a CPL § 440.10 motion to exhaust a new claim, of ineffective assistance of trial counsel. The application is DENIED.
As this Court previously stated, "the Court will not allow the AEDPA's statute of limitations to be circumvented by permitting a petitioner to file a habeas petition containing . . . unexhausted claims, and then holding that petition in suspense until the petitioner exhausts state remedies." Cowans v. Artuz, 14 F. Supp. 2 d 503, 508 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.); accord, e.g., Walker v. Artuz, 97 Civ. 8196, 1999 U.S. Dist. LEXIS 18531 at *1 (S.D.N.Y. Sept. 21, 1999) ("The Court finds that holding the petition in abeyance would be inefficient, because it would have the effect of making the district court 'a jurisdictional parking lot.'"); Bond v. Walker, 97 Civ. 3026, 1999 WL 228398 at *1 (S.D.N.Y. April 19, 1999) (Peck, M.J.); Taylor v. Artuz, 97 Civ. 3884, slip op. at 1 (S.D.N.Y. March 17, 1999) ("Petitioner's motion to hold the pending habeas corpus proceeding in abeyance while he pursues a coram nobis in state court is denied."); see also, Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at *4 n. 6 (S.D.N.Y. March 27, 1998) (Patterson, D.J. Peck, M.J.) ("if [petitioner's] present habeas petition were timely . . . and he had a pending state application for collateral review (as opposed to one he merely planned to file), that would appear to stay (i.e., extend) the AEDPA's one-year statute of limitations period, so that there would be no need to file an unexhausted petition in federal court and keep it on suspense until decision of the state petition").
Petitioner Aramas should inform the Court, by February 25, 2000, whether he wants:
1. the Court to dismiss his current petition without prejudice to allow him to exhaust the unexhausted claim in state court (the Court notes that Mr. Aramas risks a finding that any future federal habeas petition is time barred); or
2. the Court to consider only the asserted Confrontation Clause claim (however, if Mr. Aramas later were to file a second federal habeas petition to raise the unexhausted ineffective assistance of counsel claim, the second federal habeas petition likely would be denied as a successive petition); or
The Court notes that since Mr. Aramas's current petition appears timely, if he files his state collateral attack (to exhaust the unexhausted claim) before this case is dismissed (i.e., before agreeing to dismissal by February 25, 2000), thus tolling the AEDPA's statute of limitations and if he immediately files a new habeas petition after receiving the state court decision, his new habeas petition likely would be considered timely. This is not, however a certainty.
3. any other relief (which he should specify).
If Mr. Aramas does not respond by February 25, 2000, the Court will have to consider his current petition as is (i.e., option 2 above). The State's time to respond to the petition is extended to two weeks from February 25, 2000, i.e., until March 10, 2000.
CONCLUSION
For the reasons set forth above, petitioner Aramas's motion to hold the petition in suspense is DENIED.
FILING OF OBJECTIONS TO THIS OPINION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion and Order to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
SO ORDERED.