Elliot v. Kirkpatrick

Filing 66

ORDER: The Court is in receipt of Respondent's September 20, 2021 letter and enclosures regarding the findings of its investigation into the issues raised by Petitioner's August 27, 2021 submission. (Dkt. #65). Based on the Court's re view of Respondent's letter and enclosures, it appears that Petitioner received the Court's November 13, 2020 Opinion and Order (Dkt. #54), as well as the Court's subsequent Orders (Dkt. #59, 62, 64). Moreover, there is no indication t hat any delays in the Court's receipt of Petitioner's outgoing mail can be attributed to his facility rather, it appears that Petitioner's April 14, 2021 letter was initially forwarded to the Second Circuit, and that Petitioner subseq uently twice resubmitted the letter to the Second Circuit, only to send the letter to this Court for its consideration some months later. (See Dkt. #65). On this record, the Court does not find that any delays in its receipt of Petitioner's Apri l 14, 2021 letter and its enclosures provide a basis for granting the untimely relief sought in Plaintiff's application.Moreover, even were it not untimely, Plaintiff's application is without merit. Petitioner seeks a stay of the deadline f or any challenge to the Court'sNovember 13, 2020 Order pending the outcome of state-court proceedingsbrought under New York Criminal Procedure Law § 440.10. (See Dkt. #63).Prior to the Court's adjudication of his petition, Plaintiff so ught a stay of theseproceedings on this same basis (see Dkt. #16, 21), and in an order issued onMarch 30, 2018, Magistrate Judge Fox denied his application, finding thatPlaintiff was barred from bringing new claims under the statute of limitations,an d that the claims underlying his § 440.10 application did not relate back tothe initial petition (Dkt. #23). Plaintiff has provided the Court with no groundsfor reconsideration of Judge Foxs decision. While courts may grant a stay ofhabeas proce edings in "limited circumstances," Rhines v. Weber, 544 U.S. 269,277 (2005), those circumstances are not present in this case. See, e.g.,Martinez v. Mariuscello, No. 16 Civ. 7933 (RJS), 2017 WL 2735576, at *2-3(S.D.N.Y. June 23, 2017) (deny ing motion to stay habeas proceedings where"almost all of the claims [Petitioner] hopes to add to his habeas petition areplainly lacking in merit because they are time barred and do not relate back tothe claims asserted in Petitioners present pe tition"). The Court considers thismatter closed.The Clerk of Court is directed to mail a copy of this Order to Petitioner athis address of record.SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/21/2021) (rro) Transmission to Docket Assistant Clerk for processing.

Case 1:17-cv-07529-KPF-KNF Document 66 Filed 09/21/21 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAWRENCE ELLIOT,
Petitioner,
-v.MICHAEL KIRKPATRICK,

17 Civ. 7529 (KPF)
ORDER

Respondent.
KATHERINE POLK FAILLA, District Judge:
The Court is in receipt of Respondent’s September 20, 2021 letter and
enclosures regarding the findings of its investigation into the issues raised by
Petitioner’s August 27, 2021 submission. (Dkt. #65). Based on the Court’s
review of Respondent’s letter and enclosures, it appears that Petitioner received
the Court’s November 13, 2020 Opinion and Order (Dkt. #54), as well as the
Court’s subsequent Orders (Dkt. #59, 62, 64). Moreover, there is no indication
that any delays in the Court’s receipt of Petitioner’s outgoing mail can be
attributed to his facility — rather, it appears that Petitioner’s April 14, 2021
letter was initially forwarded to the Second Circuit, and that Petitioner
subsequently twice resubmitted the letter to the Second Circuit, only to send
the letter to this Court for its consideration some months later. (See Dkt. #65).
On this record, the Court does not find that any delays in its receipt of
Petitioner’s April 14, 2021 letter and its enclosures provide a basis for granting
the untimely relief sought in Plaintiff’s application.
Moreover, even were it not untimely, Plaintiff’s application is without
merit. Petitioner seeks a stay of the deadline for any challenge to the Court’s

Case 1:17-cv-07529-KPF-KNF Document 66 Filed 09/21/21 Page 2 of 2

November 13, 2020 Order pending the outcome of state-court proceedings
brought under New York Criminal Procedure Law § 440.10. (See Dkt. #63).
Prior to the Court’s adjudication of his petition, Plaintiff sought a stay of these
proceedings on this same basis (see Dkt. #16, 21), and in an order issued on
March 30, 2018, Magistrate Judge Fox denied his application, finding that
Plaintiff was barred from bringing new claims under the statute of limitations,
and that the claims underlying his § 440.10 application did not relate back to
the initial petition (Dkt. #23). Plaintiff has provided the Court with no grounds
for reconsideration of Judge Fox’s decision. While courts may grant a stay of
habeas proceedings in “limited circumstances,” Rhines v. Weber, 544 U.S. 269,
277 (2005), those circumstances are not present in this case. See, e.g.,
Martinez v. Mariuscello, No. 16 Civ. 7933 (RJS), 2017 WL 2735576, at *2-3
(S.D.N.Y. June 23, 2017) (denying motion to stay habeas proceedings where
“almost all of the claims [Petitioner] hopes to add to his habeas petition are
plainly lacking in merit because they are time barred and do not relate back to
the claims asserted in Petitioner’s present petition”). The Court considers this
matter closed.
The Clerk of Court is directed to mail a copy of this Order to Petitioner at
his address of record.
SO ORDERED.
Dated:

September 21, 2021
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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