Stanford v. Griffin
DECISION AND ORDER: ORDERED that Petitioner's motion to stay the petition (Dkt. No. 11 ) is GRANTED. ORDERED Petitioner must continually advise the Court, in writing every thirty (30) days, of the status of the pending state court proceedin gs, including the date upon which any decision(s) are reached. ORDERED that within thirty (30) days of the date upon which the final state court capable of reviewing Petitioner's applications has reached a decision, Petitioner must notify the Court of that decision. ORDERED, that if petitioner fails to comply with the terms of this Order, the stay shall be immediately lifted and the file returned to the Court for further proceedings. Signed by Senior Judge Thomas J. McAvoy on 4/4/17. (served on petitioner by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Petitioner, Pro se
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
HON. ERIC T. SCHNEIDERMAN
Attorneys for Respondent
Office of the Attorney General
New York, New York 10271
ALYSON J. GILL, AAG
THOMAS J. McAVOY
United States District Judge
DECISION and ORDER
On January 13, 2017, Petitioner Jahteek Stanford filed an amended petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, along with the filing fee. Dkt. No. 9,
Amended Petition ("Am. Pet").1 In his amended petition, petitioner challenges his 2012
judgment of conviction in Albany County Court, for the crimes of Murder in the Second
Degree, Attempted Murder in the First Degree, and Assault in the First Degree. Id. at 1.
According to petitioner, he is currently serving a sentence of 50 years to life as a result of this
In his amended petition, petitioner raises the following five grounds for habeas relief:
petitioner was denied due process as a result of prosecutorial misconduct during the
People's summation (Ground One); the trial court erred in denying petitioner's for-cause
challenge of a juror during jury selection (Ground Two); the conviction was not supported by
legally sufficient evidence (Ground Three); petitioner received ineffective assistance of
counsel due to (1) his counsel's failure "to object to the prosecutions misconduct during
summation" and (2) counsel's failure "to object to the Court's jury instructions that omitted a
proper instruction on circumstantial evidence." (Ground Four). Id. at 5-10. For a more
complete statement of petitioner's claim, reference is made to the amended petition.
Petitioner has now filed a motion seeking a stay of the amended petition until his
C.P.L. § 440.10 motion to vacate judgment is decided in state court. Dkt. No. 11, Motion f or
Stay. Respondent does not oppose the m otion. Dkt. No. 12. For the reasons that follow,
the motion for stay is GRANTED.
When a district court is presented with a "mixed petition" containing both exhausted
Petitioner's original petition, filed September 15, 2016, was administratively closed on December 15, 2016
by Order of this Court. See Dkt. No. 8, Order. Petitioner was directed to pay the filing fee and/or file a completed
IFP application, as well as file an amended petition within 30 days to "identify whether he properly exhausted his
claims prior to raising them in a federal habeas petition." Id. at 3.
and unexhausted claims, it may dismiss the petition without prejudice or retain jurisdiction
over the petition and stay further proceedings pending exhaustion of state remedies. Rhines
v. Weber, 544 U.S. 269, 275-76 (2005). This "stay and abeyance" procedure should be
"available only in limited circumstances" where the petitioner can show (1) "good cause" for
failing to "exhaust his claims first in state court" and (2) that his unexhausted claims are not
"plainly meritless." Id. at 275, 277.
In petitioner's motion to stay the habeas proceedings, petitioner claims his amended
petition includes "both exhausted and unexhausted claims." Dkt. No. 11, at 1. He maintains
that the stay is necessary while he exhausts claims currently pending before state court in a
N.Y. C.P.L. § 440.10 motion. Id. According to petitioner, he raised the following claims of
ineffective assistance of counsel in his Section 440.10 motion: (1) counsel was operating
under a conflict of interest; (2) counsel erroneously pursued a justification defense "when a
defense of extreme emotional disturbance was much more viable;" (3) counsel erred in
placing petitioner on the stand to "admit a stabbing without justification;" (4) counsel failed to
object during the People's summation; and (5) counsel failed to object to the trial court's
circumstantial evidence charge." Id. at 2-3.2 According to the response filed by respondent,
petitioner's motion to vacate judgment was denied on March 8, 2017, and petitioner's
application for leave to appeal to the Appellate Division is still pending. Dkt. 14,
Respondent's Letter Response.
Petitioner asserts that he filed his amended petition prior to completing his state court
The Court notes that only grounds Four and Five of petitioner's C.P.L. § 440 motion are included as claims
in petitioner's Amended Petition. Only those grounds remain unexhausted for purposes of determining whether a
stay is warranted. If petitioner intends to raise any additional claims contained in his Section 440 motion, petitioner
must properly file a motion to amend his petition pursuant to the Federal and Local Rules of Civil Procedure.
collateral attack on the judgment to ensure that the habeas petition was timely under
AEDPA. Dkt. No. 12, at 1-3; see Pace v. DiGuglielmo, 544 U.S. 408, 416-417 (2005).
Petitioner states that he filed his Section 440 motion in state court on January 11, 2017, less
than a month before the statute of limitations under AEDPA was set to expire, and appears
to argue that if he waited for the state court to complete review of his claims prior to filing this
petition, the amended petition would be untimely Pet. at 1-3.
Under Pace v. DiGuglielmo, a prisoner seeking state post-conviction relief may file a
protective petition in federal court and ask the court to stay and abey the federal proceedings
until state remedies are exhausted. Pace, 544 U.S. at 416, citing Rhines v. Weber, 544 U.S.
269, 277-78 (2005). Generally, when presented with a "mixed petition” containing both
exhausted and unexhausted claims, a district court may dismiss the petition without prejudice
or retain jurisdiction over the petition and stay further proceedings pending exhaustion of
state remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005); Zarvela v. Artuz, 254 F.3d 374,
380 (2d Cir. 2001). "[I]f the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory tactics,” then the district court "should stay, rather than
dismiss, the mixed petition." Rhines, 544 U.S. at 278. The court must consider both the
timeliness of any subsequent petition if the petition were dismissed, and the impact of the
AEDPA's limitations on second or successive petitions in determining the proper disposition
of the petition. Zarvela, 254 F.3d at 378-79. If the court determines that dismissal would
“jeopardize the timeliness of a collateral attack,” it should stay the petition and condition the
stay upon petitioner both filing in state court, and returning to federal court within a specified
time period. Zarvela, 254 F.3d at 380 (quotation and other citation omitted).
Under the circumstances presented in this case, the Court finds that a stay is
warranted. For purposes of 28 U.S.C. § 2244, a state conviction generally becomes “final”
when certiorari is denied by the United States Supreme Court or when the time to seek
certiorari has expired, which is ninety days after the date direct review of the case has been
completed by the highest court in the state. Saunders v. Senkowski, 587 F.3d 543, 548-49
(2d Cir. 2009), cert. denied 131 S. Ct. 899 (2011); Williams v. Artuz, 237 F.3d 147, 151 (2d
Cir. 2001). Petitioner's conviction became final on February 2, 2016, ninety days after the
New York Court of Appeals denied leave to appeal on November 4, 2015. Petitioner had
one year, or until February 2, 2017, to file a timely habeas petition. Petitioner filed his C.P.L.
§ 440 motion on January 11, 2017, twenty-two (22) days before AEDPA's one-year statute of
limitations was set to expire, thereby tolling the limitations period while the motion is pending.
Am. Pet. at 1-3.
Dismissal of the petition without prejudice at this point would likely result in any future
petition being subject to dismissal as time-barred under AEDPA, as petitioner would only
have twenty-two days left to file the petition. Additionally, the Court cannot say, based on the
submissions before it and the fact that petitioner's application for leave to appeal his Section
440 motion is currently pending in Appellate Division, that petitioner’s unexhausted claims
are plainly meritless, and it does not appear that Petitioner has eng aged in any dilatory
tactics. Pace, 544 U.S. at 416; Rhines, 544 U.S. at 277.
Accordingly, petitioner’s motion to stay his petition is granted. Federal courts should
not, however, be turned into a “jurisdictional parking lot” for unexhausted claims. Hust v.
Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004) (quoting Baity v. McCary, No. 1:02-CV1817, 2002 WL 31433293, at *2 (S.D.N.Y. Oct. 31, 2002) (internal citations and quotations
omitted); see also Raucci v. Kirkpatrick, No. 9:16-CV-0031 (BKS), 2016 W L 204495, at *3
(N.D.N.Y. Jan. 15, 2016). Accordingly, petitioner must advise the Court in writing every
thirty (30) days of the status of the pending state court proceedings, including the date upon
which any decisions are reached in those proceedings. Within thirty (30) days of the date
upon which the final state court capable of reviewing petitioner’s applications has reached a
decision,3 petitioner must notify the Court in writing of the decision(s). Petitioner is cautioned
that if he fails to comply with the terms of this Order, the stay shall be immediately lifted and
the file returned to the Court for further proceedings.
WHEREFORE, it is
ORDERED that Petitioner’s motion to stay the petition (Dkt. No. 11) is GRANTED; and
ORDERED Petitioner must continually advise the Court, in writing every thirty (30)
days, of the status of the pending state court proceedings, including the date upon which any
decision(s) are reached; and it is
ORDERED that within thirty (30) days of the date upon which the final state court
capable of reviewing Petitioner’s applications has reached a decision, Petitioner m ust notify
the Court of that decision; and it is
ORDERED, that if petitioner fails to comply with the terms of this Order, the stay shall
be immediately lifted and the file returned to the Court for further proceedings.
To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively.
Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas
corpus petition. Substantive exhaustion requires that a petitioner “fairly present” each claim for habeas relief in “each
appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that
court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513
U.S. 364, 365 (1995) (per curiam)(quoting Picard v. Connor, 404 U.S. 270, 275 (1981)).
IT IS SO ORDERED.
Dated: April 4, 2017
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