Kennedy v. Connolly

Filing 24

MEMORANDUM & ORDER finding as moot 17 Motion to Stay. For the reasons set forth in the attached Memorandum & Order, Petitioner's application to hold his habeas petition in abeyance is denied as moot. Ordered by Judge Margo K. Brodie on 9/30/2013. (Prakash, Swati)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NICHOLAS G. KENNEDY,
NOT FOR PUBLICATION
Petitioner,
MEMORANDUM & ORDER
12-CV-0737 (MKB)

v.
WILLIAM CONNOLLY, Superintendent,
Wende Correctional Facility,
Respondents.
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MARGO K. BRODIE, United States District Judge:

Petitioner Nicholas Kennedy brings the above-captioned habeas corpus petition pursuant
to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his
federal constitutional rights. Currently before the Court is Petitioner’s motion to hold his habeas
petition in abeyance to permit him to submit a writ of error coram nobis to the Appellate
Division. (Pet. Mot. Stay., Docket Entry No. 17.)
In the context of habeas petitions, “when a petition presents both exhausted and
unexhausted claims, a federal court may in appropriate circumstances stay the petition and hold
it in abeyance to give the petitioner the opportunity to exhaust all of his claims. Henry v. Lee,
No. 12-CV-5483, 2013 WL 1909415, at *3 (E.D.N.Y. May 8, 2013) (citing Rhines v. Weber, 544
U.S. 269, 276 (2005)). While courts retain discretion to exercise this authority, they are limited
by the Supreme Court to issue the abeyance (1) “where it ‘determines there was good cause for
the petitioner’s failure to exhaust’” and (2) the claim is not ‘plainly meritless.’” Id. (citing
Rhines, 544 U.S. at 276).

By decision dated August 7, 2013, the Appellate Division, Second Department denied
Petitioner’s writ of error coram nobis, on the ground of ineffective assistance of appellate
counsel, to vacate the Appellate Division’s prior decision affirming the judgment of the County
Court, Suffolk County. See People v. Kennedy, 969 N.Y.S.2d 923 (App. Div. 2013). In view of
the Appellate Division’s denial of Petitioner’s writ of error coram nobis based on a claim of
ineffective assistance of appellate counsel, Petitioner’s application to hold his habeas petition in
abeyance is denied as moot.
SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: September 30, 2013
Brooklyn, New York

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