Battles v. LaValley

Filing 6

MEMORANDUM & ORDER: As Battles concedes that his state court remedies are unexhausted, it is appropriate that his petition be dismissed. Upon exhaustion, a refreshed petition may be filed should Battles ultimately fail in state court. For th e reasons set forth above, the 1 Petition for a Writ of Habeas Corpus is dismissed without prejudice. The Clerk of Court is ordered to close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Eric N. Vitaliano, on 11/12/2013. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOV 2 0 2013

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CALVIN BATTLES,

8ROOKLYN OFFICE

Plaintiff,
MEMORANDUM & ORDER
-against13-cv-4918 (ENV)
THOMAS LaVALLEY,
Respondent.

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VITALIANO, D.J.,
On August 23, 2013 petitioner Calvin Battles, proceeding pro se, made this
application for a writ of habeas corpus, challenging his 2006 conviction in Supreme
Court, Kings County. On October 6, 2013, the Court issued an Order directing
Battles to submit an affirmation showing cause why his petition should not be
dismissed as untimely. In response, Battles now acknowledges that he has a pending
appeal with the Second Department, which both tolls the applicable statute of
limitations and renders Battles's claim unexhausted. In light of his unexhausted
claim, Battles now requests that the Court stay his petition.
A district court may grant an application for a writ of habeas corpus sought
by a state convict only, if "it appears that the applicant has exhausted the remedies
available in the court of the State." 28 U.S.C. § 2254(b)(I)(A); Caravajal v. Artus,
633 F.3d 95, 104 (2d Cir. 2011). As Battles concedes that his state court remedies
are unexhausted, it is appropriate that his petition be dismissed. Upon exhaustion, a

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refreshed petition may be filed should Battles ultimately fail in state court.
Conclusion
For the reasons set forth above, the petition for a writ of habeas corpus is
dismissed without prejudice.
The Clerk of Court is ordered to close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status is
denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45
(1962).

SO ORDERED.
Dated:

Brooklyn, New York
November 12,2013

/S/ Judge Eric N. Vitaliano
ERIC N~VITALIINO bee
United States District Judge
C""

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