Scott v. Lee

Filing 19

ORDER that Petitioner is to provide an update in writing to the Court within fourteen (14) days of his receipt of this Order regarding the status of his motion to vacate in State Court. Signed by Hon. Michael A. Telesca on 9/6/17. Copy of this Order sent by first class mail to Plaintiff. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICKIE SCOTT,
ORDER
No. 1:14-cv-00863-MAT

Petitioner,

-vsSUPT. WILLIAM A. LEE,
Respondent.

Rickie Scott (“Petitioner”), proceeding pro se, instituted
this action pursuant to 28 U.S.C. § 2254 (Dkt #1). In a Decision
and Order (Dtk #7) entered May 13, 2015, the Court (Curtin, J.)
informed Petitioner that his claims of ineffective assistance of
trial counsel and ineffective assistance of appellate counsel were
unexhausted, and explained to Petitioner that he must elect among
one of three procedural options. Petitioner thereafter filed a
Motion to Stay (Dkt #8) on June 23, 2015.
On March 16, 2016, the Court (Geraci, J.) issued a Decision
and Order (Dkt #11) (“the Stay Order”) granting Petitioner’s Motion
to Stay. The Stay Order stayed and held in abeyance the instant
proceeding

with

respect

to

Petitioner’s

exhausted

claims

and

dismissed without prejudice his unexhausted claims, with leave to
refile upon their exhaustion. The Stay Order indicated that the
stay was conditioned on (1) Petitioner’s initiation of efforts to
exhaust his unexhausted claims within 30 days, and (2) his return

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to District Court within 30 days of the completion of exhaustion
proceedings in State Court. Petitioner was explicitly cautioned
that if either condition of the stay was not met, the stay could be
vacated nunc pro tunc as of the date it was entered, and the
Petition could be dismissed if it was not timely.
Petitioner then sent a letter to Judge Geraci requesting an
extension of time in which initiate efforts to exhaust his claims.
Judge Geraci “so ordered” the letter on April 16, 2016 (Dkt #12)
and extended Petitioner’s time to commence exhaustion proceedings
until May 4, 2016.
On April 27, 2016, Petitioner filed a “Notice of Motion by
Petitioner to Amend” (Dkt #13, duplicated at Dkt #14). Petitioner
indicated that he had “initiated efforts to exhaust his unexhausted
claims within the 30 days by means of 440.10 motion to vacate
conviction.” (Dkt #13, p. 1 of 8).
Petitioner is ordered to provide an update in writing to the
Court within fourteen (14) days of his receipt of this Order
regarding the status of his motion to vacate

in State Court.

SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

September 6, 2017
Rochester, New York

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