Davis v. Graham
DECISION AND ORDER denying 6 Motion for Petition to be held in Abeyance. Petitioner has until October 27, 2017 to file a reply to Respondent's opposition papers. SO ORDERED. A copy of this NEF and Order have been mailed to the pro se Petitioner. Signed by Hon. Frank P. Geraci, Jr. on 9/28/2017. (AFM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 16-CV-275-FPG
DECISION AND ORDER
HAROLD D. GRAHAM,
Pro se petitioner Kevin Davis (“Petitioner”) seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. ECF No. 1. On November 4, 2016, Petitioner moved to hold his petition in
abeyance while he exhausts his claims in state court. ECF No. 6. Petitioner also requests more
time to reply to Respondent’s opposition to his habeas petition because he was unaware of the
deadline. ECF No. 6 at 2. For the reasons that follow, Petitioner’s motion to hold his petition in
abeyance (ECF No. 6) is DENIED. Petitioner has until October 27, 2017 to file a reply to
Respondent’s opposition papers.
Petitioner was convicted after a jury trial in New York State Supreme Court, Erie County,
of murder in the second degree and was sentenced to 25 years to life. ECF No. 1 at 1. On direct
appeal, the Appellate Division, Fourth Department unanimously affirmed his conviction. People
v. Davis, 118 A.D.3d 1264 (4th Dep’t 2014). The New York Court of Appeals denied leave to
appeal. People v. Davis, 24 N.Y.3d 1083 (2014).
On April 6, 2016, Petitioner filed this habeas petition that asserts the following grounds for
relief: (1) that he was denied due process and effective assistance of counsel; (2) that post-trial
evidence of his innocence constitutes newly discovered evidence and requires the vacatur of his
conviction; and (3) that his conviction should be vacated because he is “actually innocent.” ECF
No. 1 at 4.
On November 4, 2016, Petitioner moved to have the petition stayed and held in abeyance
so that he can fully exhaust his claims in state court. ECF No. 6. Petitioner argues that his claims
have not been exhausted because “certain of those claims are still pending before the Appellate
Division” and that the Court should review his petition “on a preliminary basis due to Petitioner
not being informed of the deadlines to file responses and/or reply to Respondent’s Answer and
Memorandum in opposition to his federal Habeas claims.” Id. at 1-2.
In Rhines v. Weber, 544 U.S. 269, 278 (2005), the Supreme Court stated that “it likely
would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition
if the petitioner had  good cause for his failure to exhaust,  his unexhausted claims are
potentially meritorious, and  there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” On the other hand, even if a petitioner had “good cause” for failing to
exhaust the claims first, it would be an abuse of discretion to grant a stay when the claims are
“plainly meritless.” Id. at 277 (citing 28 U.S.C. § 2254(b)(2)).
The Supreme Court did not define “good cause” in Rhines. “[I]in the years since, the
Supreme Court has elaborated only once, holding in Pace v. DiGuglielmo that 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.’” Nieves v. Conway, No. 09-CV-3710 SLT LB, 2011 WL
2837428, at *2 (E.D.N.Y. July 14, 2011) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).
“Reasonable confusion” as to federal court deadlines, however, does not constitute good cause for
petitioner’s failure to exhaust in state court. Id. at *3 (noting that even if petitioner demonstrated
“reasonable confusion” about the filing deadline, “Pace is of little help to Petitioner, as it
recognizes confusion about state deadlines; it does not offer explicit support for finding good cause
in confusion as to a federal deadline.”) (citing Pace, 544 U.S. at 416) (emphasis in original).
Here, Petitioner merely asserts that he was confused as to the filing deadlines in the instant
habeas case. Specifically, Petitioner requests that the Court review his petition “on a preliminary
basis due to Petitioner not being informed of the deadlines to file responses and/or reply to
Respondent’s Answer and Memorandum in opposition to his federal Habeas claims.” ECF No. 6
at 1-2 (emphasis added).
As noted above, reasonable confusion as to federal deadlines does not constitute “good
cause” for failing to exhaust state claims. “The absence of ‘good cause’ for the failure to exhaust
is fatal to Petitioner’s ability to fulfill the Rhines standard.” Carr v. Graham, 27 F. Supp. 3d 363,
365 (W.D.N.Y. 2014) (citing Rhines, 544 U.S. at 277) (“Because granting a stay effectively
excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is
only appropriate when the district court determines there was good cause for the petitioner’s failure
to exhaust his claims first in state court.”)). Accordingly, the Court finds that “good cause” is not
present and that it would be an abuse of discretion to grant a stay. Benton v. LaClair, No. 6:14CV-06012 MAT, 2015 WL 1003847, at *5 (W.D.N.Y. Mar. 5, 2015) (“Petitioner cannot show
good cause for his failure to exhaust his claim earlier, and absent such cause, the Court would
abuse its discretion in granting a stay.”).
For the reasons stated, Petitioner’s motion to hold his petition in abeyance (ECF No. 6) is
DENIED. Petitioner has until October 27, 2017 to file a reply to Respondent’s opposition papers.
IT IS SO ORDERED.
Dated: September 28, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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