Hoppe v. Griffin

Filing 6

DECISION AND ORDER: ORDERED that petitioner's letter motion to stay this action, Dkt. No. 5 , is DENIED. Signed by Magistrate Judge Christian F. Hummel on 3/8/17. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOSEPH HOPPE,
Petitioner,
v.
9:17-CV-0170
(GTS/CFH)
THOMAS GRIFFIN,
Respondent.

APPEARANCES:

OF COUNSEL:

JOSEPH HOPPE
10-B-0203
Petitioner pro se
Green Haven Corr. Facility
P.O. Box 4000
Stormville, New York 12582
CHRISTIAN F. HUMMEL,
United States Magistrate Judge
DECISION AND ORDER
Petitioner pro se Joseph Hoppe filed a motion to stay his pending petition for a writ of
habeas corpus. Dkt. No. 5. He explains that he has "asked the New York State Court of
Appeals to reconsider [his] leave to appeal application which was denied on January 17,
2017." Dkt. No. 5 at 1. 1 According to petitioner, the court erroneously ruled that the order
petitioner attempted to appeal from was not appealable under New York Criminal Procedure
Law ("CPL") §450.90(1). Id. He asks this Court to stay this action pending the outcome of
his motion. Id. at 1-3.
When a district court is presented with a "mixed petition" containing both exhausted

1

The cited page numbers refer to those generated by the Court's electronic filing system ("ECF"). Petitioner
attached to his federal habeas petition a copy of the January 17, 2017 order from which he now seeks
reconsideration. Dkt. No. 1-1 at 6.

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. Petitioner failed to allege or establish any basis for this
Court to find good cause for his failure to seek reconsideration of the January 17, 2017 state
court decision prior to filing his federal habeas petition. See Dkt. No. 5; Rhines, 544 U.S. at
275, 277. He has not made the required showing to warrant a stay, and his motion is
therefore denied.
WHEREFORE, it is
ORDERED that petitioner's letter motion to stay this action, Dkt. No. 5, is DENIED;
and it is further
ORDERED that the Clerk serve copies of this Decision and Order upon the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 8, 2017
Albany, New York

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