McFarland v. Kirkpatrick

Filing 19

-CLERK TO FOLLOW UP- ORDER DIRECTING petitioner to advise the Court in writing no later than October 1, 2013 of the status of both the hearing on the newly discovered evidence claim and the application for leave to appeal from the denial of the ineffective assistance claim. If a determination on either the hearing or application is issued sooner than October 1, 2013, petition shall so notify the Court immediately upon receipt of any such determination. In order to advise respondent of the status of the stay of the instant petition, the Clerk of the Court is directed to forward a copy of this Order electronically via a Notice of Electronic Filing to Alyson Gill <[e-mail]> and [e-mail]> of the Office of the Attorney General, Federal Habeas Unit. Signed by Hon. Jeremiah J. McCarthy on 7/29/13. (Court has mailed a copy of this order to petitioner).(DAZ)

L]NITED STATES DISTRICT COURT
WESTERN DISTzuCT OF NEW YORK

RODNEY MCFARLANT'.

ORDER

Petitioner,

No. 08-CV-0065(M)

-vs-

ROBERT A. KIRKPATRICK
Respondent.

This petition for a writ ofhabeas corpus, pursuant to 2g U.S.C.
52254, is

curently

stayed pending petitioner's exhaustion

ofhis

state

judicial remedies with respect to the

following claims raised in the petition: fl 22A, ,,Blady Violation_prosecutorial Misconduct:
Statement of Niecye McWilliams; fl 22F, .Newly Discovered Evidence;,,

Affidavit of Tuemail

McCullo'gh;and,!l22G,,,lneffectiveAssistanceofCounsel.,,[7]r. petitioner was advised that
as a

condition ofthe stay he had to commence state judicial proceedings within 30 days ofthe

Order and retum to this Cout within 30 days ofthe completion ofany statejudicial
Foceedings

commenced.

L!

The stay has been continued based on the pendency ofpetitioner,s state court

motion to vacate his petition, pursuant to N.y. Crim.proc. L.,
$440.10, and petitioner has beren
directed to advise the Cout periodically of the status ofthat motion
[g, 15, and l7].
On July 22, 2013, petitioner's counsel on the state court motioit submitted
a
letter to the Court [18] noting that on July 5, 2013, the Appellate Division,
Fowth Depaxtment
had affrrmed the denial ofpetitioner's ineffective assistance of counsel claim
a,'d reversed the

References are to CM/ECF docket entri€s.

denial ofpetitioner's newly discovered evidence claim and remanded the matter back to New

York State Supreme Court for
3359280 (4th Dept.2013).

a hearing on that

issue. People v. McFarland, A.D.3d,2013 WL

Ahea ng was initially

scheduled for July 22,2013, and petitioner

has submitted an application for a certillcate gEnting leave to appeal to the New

york Court of

Appeals seeking leave to appeal the denial ofthe ineffective assistance ofcounsel claim.
Counsel indicates that a determination on the application may take anlnvhere between 2 to 6
months.
Due to the pendency ofthe application for leave to appeal alld the remand to the

tdal cout for

a hearing, the

Cout finds that the stay-and-abeyance should continue and

petitioner is directed to advise the Court in writing no later than October 1, 2013 ofthe status

ofboth the hearing on the newly discovered evidence claim and the application for leave to
appeal from the denial of the i[effective assistance

claim. If

a determination on either the

hearing or application is issued sooner than October 1, 2013, petition shall so notify the Court

immediately upon rcceipt ofany such detemination.

Ifpetitioner does not respond to his Order

as directed, the thiee unexhausted

claims that \ir'ere dismissed without prejudice will remain dismissed without prejudice and

petitioner may later be baned from bringing them again, either in this matter or a later filed
petition for a wdt ofhabeas corpus, either because tlley may be rmtimely, ,ree 2g U.S.C.
$2244(dX1), or because ofthe gate-keeping rules regarding successive or second petitions for
habeas corpus

relief.

See 28

U.S.C. 92244(b).

In order to advise respo[dent ofthe status ofthe stay ofthe instant petition, the
Clerk of the Court is directed to forward a qopy of this Order elecfonically via

-2-

a

Notice

of

Electonic Filing to Alyson Gill <AlySq4,lGill@qglygqy> and [e-mail]> of
the Office

ofthe Attomey General, Federal Habeas Unit.

SO ORDERED.
Dated: July 29, 2013
t lnited States

Masi