Opinion
02 Civ. 5810 (DLC) (AJP)
November 5, 2002
REPORT AND RECOMMENDATION
To the Honorable Denise L. Cote, United States District Judge:
Pro se petitioner Bruce King has filed an admittedly "mixed" petition for a writ of habeas corpus, containing one exhausted claim and three additional claims that are unexhausted but are in the process of being exhausted through his C.P.L. § 440 motion which is currently pending in state court. For the reasons discussed below, in line with the Second Circuit's decision in Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir. 2001), because King still has more than sixty days before expiration of the AEDPA's one year limitation period, his petition should be dismissed without prejudice rather than stayed.
DISCUSSION
Petitioner King's pro se habeas petition is dated June 21, 2002 and was received by the Court's Pro Se Office on June 25, 2002. (Dkt. No. 1: Pet. at p. 1, 9.)
King's petition asserts four habeas claims, and he concedes that three of the four have not been exhausted. (Pet. ¶¶ 12, 13; see also Dkt. No. 5: State Br. at 2.) The petition, therefore, is a "mixed" petition since it contains both exhausted and unexhausted claims. See Zarvela v.Artuz, 254 F.3d 374, 376, 378 (2d Cir. 2001). It is also undisputed that King currently has a C.P.L. § 440 "Motion to Vacate" pending in state court in order to exhaust the claims. (Pet. ¶¶ 12-13; State Br. at 2.)
It is also undisputed that King's present habeas petition was timely filed, and because of the toll for his C.P.L. § 440 motion, if this action is dismissed he still will have over three months from the state court's decision of his C.P.L. § 440 motion to return to federal court.
The New York Court of Appeals affirmed King's conviction on June 5, 2001. People v. Anonymous, 96 N.Y.2d 839, 729 N.Y.S.2d 434 (2001),aff'g, 275 A.D.2d 210, 712 N.Y.S.2d 482 (1st Dep't 2000). Thus, the AEDPA's one year time limit, 28 U.S.C. § 2244(d)(1), began to run 90 days later, on September 3, 2001. E.g., Pratt v. Greiner, No. 01-2460, 2002 WL 31285784 at *5 n. 1 (2d Cir. Oct. 4, 2002) ( cases cited therein). The State concedes the point. (Dkt. No. 5: State Br. at 3 n. 2.) Pursuant to 28 U.S.C. § 2244(d)(2), "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."
King filed his state C.P.L. § 440 Motion to Vacate Judgment on or about May 14, 2002. (Dkt. No. 1: Pet., attaching Motion to Vacate Judgment, containing a 5/14/02 affidavit of service.)
The State's brief asserts that King's Motion to Vacate was filed in state court on June 4, 2002. (Dkt. No. 5: State Br. at 3 n. 2; Dkt. No. 5:10/18/02 Aff. of Asst. Attorney General Darian B. Taylor, ¶ 5.) The Court does not know the State's basis for the June 4, 2002 date, but even if that were correct it would not affect the Court's reasoning, although it would shorten King's remaining time to file a new federal habeas petition by about three weeks.
While the filing of this federal habeas petition does not statutorily toll the AEDPA limitations period see e.g., Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129 (2001), here King has had such a toll because he filed his state C.P.L. § 440 Motion to Vacate before filing his habeas petition, and the state Motion to Vacate remains pending.
In short, between September 3, 2001 and May 14, 2002 (when the C.P.L. § 440 Motion to Vacate's toll began), only 253 days elapsed. Thus, King would have 112 days — almost 3-1/2 months — to bring a federal habeas petition after the state courts rule on his pending C.P.L. § 440 Motion to Vacate.
The Second Circuit in Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001), instructed the district courts on how to handle a "mixed" petition containing exhausted and unexhausted claims in light of the AEDPA's one year statute of limitations: the district court should "dismiss only the unexhausted claims. As to the exhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety." Id. at 380. The Second Circuit further instructed that "a stay . . . will be the only appropriate course in cases . . . where an outright dismissal 'could jeopardize the timeliness of a collateral attack.'" Id. The Second Circuit also noted that "a stay of the exhausted claims will often be preferable to a dismissal of the entire petition because such a stay will reflect the continued viability of the initially filed exhausted claims."Id. at 381. The Second Circuit further elaborated that "when a district court, confronted with a mixed petition, elects to stay the petition, it should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. . . . These two intervals will, in a sense, afford some petitioners (those with fewer than 60 days remaining on the limitations period) brief additional time, beyond the normal one-year period, to pursue state court remedies and return to federal court." Id. at 381-82.
Here, King's remaining time to bring a federal habeas petition would be 112 days — considerably longer than "those with fewer than 60 days remaining on the limitations period, " Zarvela v. Artuz, 254 F.3d at 381. On the facts of this case, therefore, it is more appropriate to dismiss the entire petition without prejudice rather than to stay it in part and dismiss in part. See e.g. Evans v. Senkowski, No. CV 98-4488, 2002 WL 31360281 at *5 (E.D.N.Y Oct. 17, 2002) ("The Second Circuit made clear in Zarvela . . . that a stay is only required in cases where dismissal would jeopardize the timeliness of a later collateral attack."); Danforth v. Crist, No. Civ. 01-2137, 2002 WL 31163127 at *4 (D. Minn. Sept. 26, 2002) (Court elected to dismiss mixed petition because "dismissal will not take away petitioner's opportunity for federal review" where petitioner would still have "nearly four months to file a habeas petition" after exhausting his unexhausted claim.);Edwards v. Greiner, No. CV 00-1331, 2002 WL 1467708 at *3 (E.D.N.Y. May 7, 2002) (Raggi, D.J.) (Where petitioner had 77 days to exhaust his state claims, the court that dismissed his first petition rather than staying it "acted reasonably" because petitioner's "case does not fall within the parameters outlined by Zarvela. That case holds that an unexhausted habeas petition should be stayed rather than dismissed when a petitioner has less than 60 days remaining in the limitations period."); but see Jones v.Spitzer, 01 Civ. 9754, 2002 WL 737649 at *45 (S.D.N.Y. Apr. 26, 2002) (Where petitioner had nearly six months remaining in his one-year limitations period, court stayed exhausted claims on the conditions that petitioner pursue unexhausted claim within 30 days and return to federal court within 30 days of a state court decision.).
Where, as here, a district court elects to dismiss rather than stay a mixed petition, the Second Circuit in Zarvela instructed that it would "be useful to alert the petitioner to the one-year limitations period of AEDPA and to the fact that a portion of that period has already elapsed."Zarvela v. Artuz, 254 F.3d at 382. The Court therefore hereby alerts King that he must file a new federal habeas petition within 112 days after the state court decides his pending C.P.L. § 440 Motion to Vacate. If he does not do so, his new federal habeas petition will be time barred.
CONCLUSION
For the reasons set forth above, the Court should dismiss King's mixed habeas petition without prejudice, allowing him to timely file a new federal habeas petition within 112 days of the state court's decision on his pending C.P.L. § 440 Motion to Vacate.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2dCir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).