Pearson v. Rock

Filing 17

ORDER: Petitioner's 14 Motion to Amend is DENIED WITHOUT PREJUDICE. So Ordered by Judge Nicholas G. Garaufis on 1/17/2013. (c/m to pro se) (Lee, Tiffeny)

[
IN

CU.:)~J<'S

OFFICE

US f)!ST:-(<_1 'f)! JRT :::D.NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

.i

-------------------------------------------------------------)(
KA YSON PEARSON,

<..JiJ

*

BROOKLYN OFFICE
ORDER

Petitioner,
12-CV-3505 (NGG) (LB)

-againstDAVID ROCK, Superintendent, Upstate
Correctional Facility,
Respondent.

-------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner Kayson Pearson filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 on July 2, 2012, challenging his state court convictions for first degree murder,
first degree kidnapping, first degree rape, and first degree sodomy, by claiming ineffective
assistance of trial counsel and violation of the Double Jeopardy Clause (the "Petition"). (See
Pet. (Dkt. 1).) Respondent opposed the Petition. (Resp. Opp'n to Pet. (Dkts. 12-13).) On
December 14, 2012, Petitioner filed a motion to amend the Petition to add a claim of ineffective
assistance of appellate counsel. (Pet. Mot. to Amend (Dkt. 14).) Respondent submitted a letter
response on January 14, 2013. (Jan. 14, 2013, Resp. Ltr. (Dkt. 16).) In its letter, Respondent:
(I) stated that it does not oppose Petitioner's motion to amend; (2) advised the court that

Petitioner's claim of ineffective assistance of appellate counsel, raised in a writ of error coram
nobis, was denied by the New York State Supreme Court Appellate Division, Second
Department, on November 28,2012, and that Petitioner has sought leave to appeal the denial to
the Court of Appeals; and (3) stated that it would consent to holding the Petition in abeyance
until there is a final state court disposition on Petitioner's ineffective assistance of appellate
counsel claim. (!QJ
1

The ineffective assistance of appellate counsel claim Petitioner seeks to add to his
Petition is not exhausted. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("Before seeking a
federal writ of habeas corpus, a state prisoner must exhaust available state remedies." (citing
28 U.S.C. § 2254(b)(l))). Thus, amending his Petition to add the claim would make it a "mixed
petition" containing both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269,
273-74 (2005). A court can, if certain requirements are met, stay a mixed petition in order for
the petitioner to exhaust the unexhausted claims. I d. at 277-78.
Rather than granting Petitioner's motion to amend and requiring Petitioner to make a
further submission explaining why his mixed petition should be stayed, the court will deny the
motion without prejudice and allow Petitioner to make a renewed motion to amend once the
ineffective assistance of appellate counsel claim has been exhausted. When Petitioner receives
notice of a final state court disposition of his ineffective assistance of appellate counsel claim,
either by denial of leave to appeal or a decision from the Court of Appeals, he is directed to
inform the court via letter of the outcome of his claim. Petitioner must notify the court within
thirty days of receiving such notice. At such time, Petitioner may renew his motion to amend.
Accordingly, Petitioner's motion to amend is DENIED WITHOUT PREJUDICE. The
Clerk of the Court is directed to mail a copy of this Order to Petitioner.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
January _!_2, 2013

iJ"JCHOLAS G. GARAlJ'iEIS
United States District Judge

2