Rivera v. Kaplan

Filing 8

MEMORANDUM OPINION & Order: re: 7 LETTER MOTION for Extension of Time to File Response/Reply and In Opposition to Petitioner's Request for a Stay addressed to Judge Ronnie Abrams from Paul B. Lyons dated June 8, 2017 filed by Sabri na Kaplan. Accordingly, the motion to stay the petition is granted. Petitioner must, however, advise this Court in writing within 30 days after state court exhaustion is complete. If she fails to do so "the stay may later be vacated nunc pro tu nc"-meaning retroactively-"as of the date the stay was entered, and the petition may be dismissed" in certain circumstances. See Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir. 2001). SO ORDERED. (Signed by Judge Ronnie Abrams on 7/13/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 7/13/2017

LILLIAN RIVERA,
Petitioner,
v.
SABINA KAPLAN,

17-CV-2257 (RA)
MEMORANDUM OPINION
&ORDER

Respondent.
RONNIE ABRAMS, United States District Judge:
Lillian Rivera filed this petition for habeas corpus, dated March 20, 2017, as a "protective
petition[]" pursuant to Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). Pet. at 9, Dkt. 2. 1
Rivera lists four grounds on which she claims that she is being held unlawfully in state custody,
and asserts these grounds were not "presented to the state court due to Petitioner recently finishing
her CPL [ §] 440.10 motion[,] therefore [she] is requesting a 'stay and abeyance' so that she may
have the matter determined on the merits." Pet. at 5, Dkt. 2. Rivera explains that she "[d]id not
want to run out of time." Id. According to Respondent, Rivera filed a CPL§ 440.10 motion on
April 5, 2017, which remains pending. Resp.' s Ltr. Mot. at 2, Dkt. 7. Respondent opposes
Rivera's request for a stay and abeyance and moves to dismiss the petition without prejudice based
on lack of exhaustion. Id. at 1. Rivera's stay application is granted. 2

1

Because not all of Petitioner's submissions are paginated, the page numbers cited refer to the
ECF page numbers.
2

On July 10, 2017, the Court received a letter from Petitioner dated July 3, 2017, which requests
additional time to reply to Respondent's motion that her petition should be dismissed, and reasserts her
request for a stay and abeyance of her petition. She also contends that she "submitted both exhausted and
unexhausted claims." Petitioner, however, has not identified any exhausted claims, and thus, for the
purpose of this application, the Court assumes without deciding that all of her claims are unexhausted.
Because the Court grants Petitioner's request for a stay and abeyance, her request for additional time to
oppose Respondent's pending motion is denied as moot.

Respondent argues that there is no basis to retain jurisdiction over a petition that contains
only unexhausted claims. Id. at 2. That argument ignores the Supreme Court's guidance in Pace
that a petitioner should take the very action Rivera does here. In Pace, the Court held that the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDP A) statute of limitations period is
not tolled when a postconviction petition is rejected by the state court as untimely, because such
petition is not deemed to have been "properly filed," within the meaning of AEDPA's statutory
tolling provision. 544 U.S. at 410. Responding to the argument that a "petitioner trying in good
faith to exhaust state remedies may litigate in state court for years only to find out at the end that
[it] was never 'properly filed,"' and that his federal habeas petition is thus time barred, the Supreme
Court noted in dicta that:
A prisoner seeking state postconviction relief might avoid this
predicament ... by filing a "protective" petition in federal court and
asking the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted. A petitioner's
reasonable confusion about whether a state filing would be timely
will ordinarily constitute "good cause" for him to file in federal
court.
Pace, 544 U.S. at 416-17 (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). The majority

included this language despite the dissent' s warning that:
The inevitable result of today's decision will be a flood of protective
filings in the federal district courts. As the history of this case
demonstrates, litigants, especially those proceeding pro se, cannot
predict accurately whether a state court will find their application
timely filed. Because a state court's timeliness ruling cannot be
predicted with certainty, prisoners who would otherwise run the risk
of having the federal statute of limitations expire while they are
exhausting their state remedies will have no choice but to file
premature federal petitions accompanied by a request to stay federal
proceedings pending the exhaustion of their state remedies. The
Court admits that this type of protective filing will result from its
holding.

2

Id. at 429 (Stevens, J, dissenting) (internal citation omitted). "While ... dictum is not binding

upon us, it must be given considerable weight and cannot be ignored." United States v. Bell, 524
F.2d 202, 206 (2d Cir. 1975) (footnote omitted); see also Sierra Club v. E.P.A., 322 F.3d 718, 724
(D.C. Cir. 2003) ("For this 'inferior Court [ ],' U.S. Const. art. III, § 1, cl. 1, ... 'carefully
considered language of the Supreme Court, even if technically dictum, generally must be treated
as authoritative."' (quoting United States v. Oakar, 111F.3d146, 153 (D.C. Cir. 1997))); Bangor
Hydro-Elec. Co. v. F.E.R.C., 78 F.3d 659, 662 (D.C. Cir. 1996) ("It may be dicta, but Supreme

Court dicta tends to have somewhat greater force-particularly when expressed so
unequivocally."); Arnold's Wines, Inc. v. Boyle, 515 F. Supp. 2d 401, 412 (S.D.N.Y. 2007) ("But
if dicta this be, it is of the most persuasive kind."), aff'd, 571 F.3d 185 (2d Cir. 2009).
Pace suggests that whether a stay and abeyance is appropriate in a particular case is

governed by the three-part test articulated by the Supreme Court in Rhines: that a petitioner show
good cause, that the unexhausted claims are not "plainly meritless," and that there are a lack of
intentionally dilatory litigation tactics. Rhines v. Weber, 544 U.S. at 277-78. In Rhines, the Court
was confronted with "the problem of a 'mixed' petition for habeas corpus relief in which a state
prisoner present[ ed] a federal court with a single petition containing some claims that have been
exhausted in the state courts and some that have not." Id. at 271.
Although the Second Circuit does not appear to have addressed the question of whether
such a stay and abeyance procedure is available when a petition is fully unexhausted, rather than
mixed, the circuit courts that have done so-the Third, Seventh, Ninth, and Tenth-have all held
that Rhines applies to a petition that includes solely unexhausted claims. See Mena v. Long, 813
F.3d 907, 910-11 (9th Cir. 2016); Doe v. Jones, 762 F.3d 1174, 1179-82 (10th Cir. 2014); Heleva
v. Brooks, 581 F.3d 187, 191-92 (3d Cir. 2009); Dalis v. Chambers, 454 F.3d 721, 725 (7th Cir.

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2006) ("We have gone so far as to suggest that it would be wise for a petitioner to file in both state
and federal court simultaneously, particularly where there is some procedural uncertainty about
the state court post-conviction proceeding, and then ask the district court to stay the federal case
until the state case concludes to ensure that she does not miss the one-year deadline."). And as
these courts have observed, "the petition in Pace was not mixed," Doe, 762 F.3d at 1179, and the
Supreme Court "recommended this course of action without any mention that it could apply only
to a mixed petition," Heleva, 581 F.3d at 191. Consistent with the logic articulated by the Supreme
Court in Pace, the Court grants Petitioner's application for a stay.
First, Petitioner has shown good cause.

As the Supreme Court stated in Pace, "[a]

petitioner's reasonable confusion about whether a state filing would be timely will ordinarily
constitute' good cause' for him to file in federal court." 544 U.S. at 416; see also Haynes v. Ercole,
No. 08-CV-3643, 2009 WL 580435, at *1 (E.D.N.Y. Mar. 6, 2009) ("[B]ecause petitioner filed
this 'protective habeas' to ensure its timeliness, the Court finds 'good cause' for the stay.");
Whitley v. Ercole, 509 F. Supp. 2d 410, 419 (S.D.N.Y. 2007) ("[A] petitioner's showing of his
confusion, if reasonable, concerning the delay in his state filing would satisfy the Rhines
requirement of 'good cause."'); Fernandez v. Artuz, No. OO-CV-7601, 2006 WL 121943, at *4
(S.D.N.Y. Jan.18, 2006) ("District courts have ... [found] good cause where the petitioner filed a
'protective' federal habeas petition where the petitioner was confused as to whether his claims
were properly exhausted in state court.") (collecting cases)).
Here, Petitioner asserts that she is "reasonabl[y] confus[ ed] about whether a state filing
would be timely, therefore constituting 'good cause' for her to file her claim in federal court." Pet.
at 8, Dkt. 2. In particular, she states that the "[i]nstant petition is being submitted as a 'protective
petition' in order to preclude Petitioner from having the statute of limitations on her petition run

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out." Id. at 8-9 (citing Pace, 455 U.S. at 408). Respondent does not contest that Rivera's
confusion is genuine or reasonable. Respondent represents that the limitations period was tolled
on April 5, 2017, and thus "once [Rivera] completes the 440.10 proceeding, she will have
approximately three months remaining in the limitations period in which to re-file a habeas
petition." Resp.'s Ltr. Mot. at 3, Dkt. 7. The record, however, has not been filed on the docket,
and the Court cannot independently confirm Respondent's calculation. Moreover, Respondent's
position assumes that Petitioner's 440.10 petition was properly filed, a determination that, as far
as this Court is aware, has not yet been made by the state court. The "predicament" that Rivera is
seeking to avoid by filing a "protective petition," is the precise situation addressed by the Supreme
Court in Pace, namely, when "a Petitioner trying in good faith to exhaust state remedies may
litigate in state court for years only to find out at the end that [it] was never properly filed, and thus
that [her] federal habeas petition is time barred." Pace, 544 U.S. at 416 (internal quotation marks
omitted). For the foregoing reasons, Rivera has shown good cause to file a protective petition in
federal court and for a stay.
The second Rhines factor requires a petitioner to show that the unexhausted claims are not
"plainly meritless." Rhines, 544 U.S. at 277. Petitioner argues inter alia that her constitutional
rights were violated because the "trial included an ample amount of hearsay," including statements
of non-testifying co-defendants, "thereby denying Petitioner her 6th Amendment right to
confrontation" under Crawford v. Washington, 541 U.S. 36 (2004) and Bruton v. United States,
391 U.S. 123 (1968), Pet. at 4, 16-36, Dkt. 2, and that the trial was fundamentally unfair because
she had an antagonistic defense with the co-defendant with whom she was tried jointly, Pet. at 4,
11-13. Respondent has not responded to the merits of Petitioner's claims. Without opining as to
whether Petitioner's claims warrant habeas relief under AEDPA, the Court cannot say, at this point

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in time, that they are "plainly meritless." See Nickels v. Conway, No. 10-CV-0413, 2013 WL
4403922, at *6 (W.D.N.Y. Aug. 15, 2013); see also Tucker v. Kingston, 538 F.3d 732, 735 (7th
Cir. 2008) ("[F]or nearly a decade, we have informed the district courts that whenever good cause
is shown and the claims are not plainly meritless, stay and abeyance is the preferred course of
action.").
As to the third Rhines factor, there is no indication that Petitioner has "engaged in
intentionally dilatory litigation tactics."

Rhines, 544 U.S. at 278.

Petitioner sought a stay

simultaneously with filing her petition. See Whitley, 509 F. Supp. 2d at 421.
Accordingly, the motion to stay the petition is granted. Petitioner must, however, advise
this Court in writing within 30 days after state court exhaustion is complete. If she fails to do so
"the stay may later be vacated nunc pro tunc"-meaning retroactively-"as of the date the stay
was entered, and the petition may be dismissed" in certain circumstances. See Zarvela v. Artuz,
254 F.3d 374, 381-82 (2d Cir. 2001).

SO ORDERED.
Dated:

July 13, 2017
New York, New York
R

United States District Judge

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