Ward v. Lee

Filing 4

MEMORANDUM AND ORDER, In light of Ward's pro se status and his having submitted his habeas petition hard against the one-year filing deadline set out in 28 USc sec. 2244(d), the Court grants his motion to stay proceedings as he seeks to exhaust state court consideration of all of his federal claims. The Clerk of this Court is ordered to administratively close this case until either of the parties moves to restore this matter. Petitioner is directed that he has 30 days from the entry of this order to initiate collateral proceedings in state court and that, if he is denied relief there, he will have 30 days after state court exhaustion is completed to reopen these federal proceedings. Failure to meet these deadlines will result in the st ay being vacated nunc pro tunc as of the date it was entered; vacatur of the stay in turn may result in petitioner being barred from reopening his federal habeas petition because of the expiration of the one-year filing deadline. Petitioner also is d irected to notify this Court of the date he initiates collateral proceedings in state court and to supply this Court with any case or calendar number assigned by the clerk of that court. (Ordered by Judge Eric N. Vitaliano on 3/19/2011) c/m (Galeano, Sonia)

-.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ______________________________________________________ -----------x RODNEY WARD, Petitioner, -againstSUPERINTENDENT WILLIAM LEE,

IN CLERK'S OFFICE US DISTRICT COURT E.D.N.Y

.. ---

:R:lll0~~~
MEMORANDUM & ORDER II-CV -1068 (ENV)

(

______________________________________________________ -----------x
VIT ALIANO, D.J.

Respondent.

On March 4,2011, pro se petitioner Rodney Ward filed a petition, executed February 28, 2011, seeking a writ of habeas corpus pursuant to 28 U.S.c. § 2254, challenging his conviction for murder in the second degree. The conviction became final 90 days after the New York Court of Appeals denied leave to appeal on December 3, 2009. See People v. Ward, 13 N.Y.3d 911, 895 N.Y.S.2d 325 (2009) (table). Ward now moves the Court to stay his petition so that he may exhaust his ineffective assistance of appellate counsel claim in state court. In light of Ward's pro se status and his having submitted his habeas petition hard against the one-year filing deadline set out in 28 U.S.C. § 2244(d), the Court grants his motion to stay proceedings as he seeks to exhaust state court consideration of all of his federal claims. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (requiring a demonstration of good cause in order for a stay to be granted). The Clerk of this Court is ordered to administratively close this case until either ofthe parties moves to restore this matter. Petitioner is directed that he has 30 days from the entry of this order to initiate collateral proceedings in state court and that, if he is denied relief there, he will have 30 days after state court exhaustion is completed to reopen these federal proceedings. Failure to meet these

deadlines will result in the stay being vacated nunc pro tunc as of the date it was entered; vacatur of the stay in tum may result in petitioner being barred from reopening his federal habeas petition because of the expiration of the one-year filing deadline. See Zarvela v. Artuz, 254 F.3d 374,380-81 (2d Cir. 2001). Petitioner also is directed to notify this Court of the date he initiates collateral proceedings in state court and to supply this Court with any case or calendar number assigned by the clerk of that court.

SO ORDERED. Dated: Brooklyn, New York March 19,2011

- -./1 --..

--.L.____

ERIC N. VIT ALIANo United States District Judge

2