Dukes v. Graham

Filing 32

ORDERED that Dukes shall show cause within 30 days of the date of this order why this Court should stay his petition; and that within 30 days of receipt of the petitioner's response, the respondent shall file a reply. Signed by Hon. Lawrence J. Vilardo on 07/20/2020. (Chambers mailed a copy of this order to the pro se plaintiff on 07/20/2020).(CEH)

Case 1:16-cv-00918-LJV-HKS Document 32 Filed 07/20/20 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBERT DUKES,
Petitioner,
v.

16-CV-918-LJV-HKS
DECISION & ORDER

HAROLD GRAHAM,
Respondent.

On November 16, 2016, the pro se petitioner, Robert Dukes, petitioned this Court
for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he was convicted in
the Yates County Court in violation of his constitutional rights. Docket Item 1. On May
5, 2017, the respondent answered the petition, Docket Item 9; and on July 14, 2017, the
petitioner replied, Docket Item 13. On November 12, 2019, the case was referred to
United States Magistrate Judge H. Kenneth Schroeder, Jr., for all proceedings under 28
U.S.C. §§ 636(b)(1)(A) and (B). Docket Item 19. On February 26, 2020, Dukes moved
to amend his petition, Docket Item 21; and on March 20, 2020, Graham responded in
opposition, Docket Item 22. On April 23, 2020, Judge Schroeder issued a Report and
Recommendation (“R&R”) finding that the petition should be denied. Docket Item 24.
On June 2, 2020, Dukes moved to hold his petition in abeyance so that he could
“submit a state post-conviction motion before the court of conviction regarding . . .
additional errors of counsel during the course of the trial that are meritorious and
relevant to a fair review of the instant habeas petition.” Docket Item 28 at 1.

Case 1:16-cv-00918-LJV-HKS Document 32 Filed 07/20/20 Page 2 of 3

DISCUSSION
It is “an abuse of discretion for a district court to deny a stay . . . 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.” Rhines v. Weber, 544 U.S. 269, 278 (2005). “Even where stay and
abeyance is appropriate,” however, “district courts should place reasonable time limits
on a petitioner’s trip to state court and back.” Id. at 277-78.
Here, it is not apparent from the petitioner’s short request what grounds for relief
he plans to raise before the state court—or why he has not already done so in the
roughly four and a half years since his conviction became final. Even so, in light of his
pro se status, the Court will grant Dukes leave to show cause why his request meets the
Rhines standard.
Accordingly, in order for Dukes’s petition to be stayed and held in abeyance, he
must show cause, within 30 days of the date of this order and with respect to each
specific claim he seeks to raise in state court, why (1) there is good cause for his failure
to exhaust, (2) the claim is not “plainly meritless,” and (3) he has not engaged in dilatory
litigation tactics with respect to that claim. See id. at 278. To the extent Dukes seeks to
raise new claims, he also must explain why these new claims “relate back” to his
original petition. See Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas
petition . . . does not relate back (and thereby escape AEDPA’s one-year time limit)
when it asserts a new grounds for relief supported by facts that differ in both time and
type from those the original pleading set forth.”).

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Case 1:16-cv-00918-LJV-HKS Document 32 Filed 07/20/20 Page 3 of 3

ORDER
In light of the above,
IT IS HEREBY ORDERED that Dukes shall show cause within 30 days of the
date of this order why this Court should stay his petition; and it is further
ORDERED that within 30 days of receipt of the petitioner’s response, the
respondent shall file a reply.

THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS
AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE
RESPONDENT.

SO ORDERED.

Dated:

July 20, 2020
Buffalo, New York

/s/ Hon. Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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