Owens v. Lempke

Filing 29

DECISION AND ORDER denying petitioner's 27 Motion to Stay. No certificate of appealability shall be issued. Signed by Senior Judge Thomas J. McAvoy on 1/28/2013. (amt) [Petitioner served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ROBBIE D. OWENS,
Petitioner,
v.

9:11-CV-0806
(TJM)

JOHN LEMPKE,
Respondent.

APPEARANCES:

OF COUNSEL:

ROBBIE D. OWENS
07-B-1377
Petitioner, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Respondent
120 Broadway
New York, NY 10271

PAUL M. TARR, ESQ.
Ass't Attorney General

THOMAS J. McAVOY
Senior United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Petitioner Robbie D. Owens seeks a stay of this habeas corpus proceeding brought

pursuant to 28 U.S.C. § 2254. See Dkt. No. 27, Motion to Stay. Respondent objects. See
Dkt. No. 28, Respondent's Opposition ("Resp't Opp."). For the reasons that follow,
petitioner's motion is denied.

II.

BACKGROUND
On March 23, 2007, following a jury trial in Onondaga County Court, petitioner was

convicted of first degree rape, promoting prostitution, compelling prostitution, and
endangering the welfare of a child. See Dkt. No. 8, Amended Petition ("Am. Pet.") at 2. On
direct appeal, the Appellate Division, Fourth Department, affirmed petitioner's conviction, and
the New York State Court of Appeals denied leave to appeal on May 12, 2010. See People
v. Owens, 70 A.D.3d 1469 (4th Dep't 2010), lv. denied 14 N.Y.3d 890 (2010).
Petitioner then brought this action seeking a writ of habeas corpus. See Dkt. No. 1,
Petition. Petitioner's initial pleading failed to comply with Rule 8 of the Federal Rules of Civil
Procedure, and the Court, sua sponte, directed petitioner to file an amended petition. See
Dkt. No. 6, Decision and Order. On August 16, 2011, petitioner filed an amended petition in
accordance with the Court's order. See Am. Pet.
On April 19, 2012, petitioner filed the instant motion requesting a stay so he may
pursue a motion in state court under N.Y. Crim. Proc. Law § 440.10. See Dkt. No. 27,
Motion to Stay. Petitioner, however, fails to describe the basis of any such state court
motion, other than to say that it relates to a March 2012 United States Supreme Court ruling.
Id. Respondent opposes, arguing that petitioner has failed to show good cause and that his
unexhausted claims are not plainly meritless. Resp't Opp. at 2.
III.

DISCUSSION
A district court may stay a habeas petition and hold it in abeyance to allow the

petitioner to exhaust his unexhausted claims in state court "only in limited circumstances."
Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Specifically, a court may stay a petition if the

2

petitioner can show "good cause for [his] failure to exhaust his [as-yet-unexhausted] claims,"
and that those claims are not "plainly meritless." Id. at 277. Additionally, before imposing a
stay, the Court must be satisfied that petitioner has not been engaging in "intentionally
dilatory litigation tactics." Id. at 277-78.
Petitioner's motion contains insufficient information for the Court to grant a stay.
While petitioner states that he intends to file a state court motion, he fails to identify the basis
or purpose of such a motion. See Dkt. No. 27, Motion to Stay at 1-2; Murray v. Perlman,
9:07-CV-1010 (FJS/RFT), 2008 WL 4660379, at *1 (N.D.N.Y. Oct. 21, 2008) (denying
petitioner's request for a stay where it was unclear whether he intended to exhaust a claim in
state court during the proposed stay period). Moreover, petitioner makes no attempt to
establish "good cause." See Antoine v. Martuscello, 1:11-CV-88, 2012 WL 5289535, at *2
(E.D.N.Y. Oct. 22, 2012) (noting that the lack of good cause is dispositive and there is no
need to determine the merits of petitioner's unexhausted claim or whether petitioner engaged
in intentionally dilatory litigation tactics when petitioner has failed to show good cause). In
any event, because petitioner fails to identify the claim he wishes to exhaust in state court,
the Court cannot determine whether it is plainly meritless. See Dkt. No. 27, Motion to Stay at
1-2.
To the extent petitioner is seeking a stay to exhaust a new claim that is not asserted in
his amended petition, his motion is premature. See Bethea v. Walsh, 1:09-CV-5037, 2010
WL 2265207, at *1 (E.D.N.Y. June 2, 2010) (finding premature petitioner's motion to stay
pending the filing of a Section 440.10 motion where petitioner had not raised the anticipated
claims in his habeas petition); see also Spells v. Lee, 1:11-CV-1680, 2011 WL 2532907, at

3

*1 (E.D.N.Y. June 23, 2011). In such a case, petitioner should first move to amend before
seeking an abeyance of this action. Id. Notably, however, any new claim is likely time
barred. See Am. Pet. at 3 (indicating that the statute of limitations concluded as to
petitioner's claims in August 2011). As the Supreme Court has held, "although the limitations
period is tolled during the pendency of a 'properly filed application for State post-conviction or
other collateral review,' § 2244(d)(2), the filing of a petition for habeas corpus in federal court
does not toll the statute of limitations" with respect to other claims not asserted in the
petition. Rhines, 544 U.S. at 274-75 (quoting Duncan v. Walker, 533 U.S. 167, 181-82
(2001)).
For these reasons, petitioner's motion to stay is denied.
IV.

CONCLUSION
WHEREFORE, it is
ORDERED that petitioner's motion to stay, Dkt. No. 27, is DENIED; and it is further
ORDERED that the Clerk is directed to serve a copy of this Decision and Order on the

parties in accordance with the Local Rules; and it is further
ORDERED that no certificate of appealability shall be issued in this case because
petitioner has failed to make a "substantial showing of the denial of a constitutional right"
pursuant to 28 U.S.C. § 2253(c)(2).1
IT IS SO ORDERED
Dated:January 28, 2013

1

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("§ 2253 permits the issuance of a COA only where
a petitioner has made a 'substantial showing of the denial of a constitutional right'" (citation omitted)).

4

Binghamton, NY

5