Opinion
97 Civ. 3387 (RCC) (RLE)
July 20, 2001
OPINION AND ORDER
Petitioner Jose Santana, by petition dated April 21, 1997, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of attempted murder, criminal possession of a weapon and reckless endangerment in 1987 in New York State Supreme Court. Petitioner now argues that (1) the evidence at trial failed to establish intent to commit attempted murder beyond a reasonable doubt; (2) appellate counsel was ineffective; and (3) the twenty-years-to-life sentence imposed by the trial court was excessive.
Magistrate Judge Ellis initially recommended that the petition be dismissed as untimely in light of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On January 8, 1998, then-District Judge Sonia Sotomayor adopted Judge Ellis' Report and Recommendation. However, the Second Circuit vacated the dismissal on appeal and remanded the case, in accordance with Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998) (holding that prisoners whose convictions became final before AEDPA's effective date — April 24, 1996 — are allowed a full year after that date in which to file a habeas petition).
The Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), imposed a one-year statute of limitations on habeas petitions.
Respondent then moved to dismiss the petition on exhaustion grounds. This Court again referred the case to Judge Ellis. By Report and Recommendation ("Rep.") dated May 1, 2001, Judge Ellis found that Petitioner had failed to exhaust his claims of ineffective assistance of appellate counsel and imposition of an excessive sentence. Rep. at 5. Consequently, because the petition contained both exhausted and unexhausted claims, Judge Ellis recommended that the petition be dismissed without prejudice in order to allow Petitioner to return to the state courts. Id. at 8. Judge Ellis declined the opportunity to deny the petition on the merits pursuant to 28 U.S.C. § 2254(b)(2) because he determined that the record was not sufficiently developed. Id. However, Judge Ellis also warned that, because Petitioner filed the instant petition just three days before the one-year statute of limitations expired, Petitioner must act expeditiously to commence state court proceedings and return to federal court:
The record is clear that petitioner filed the instant petition on April 21, 1997, just three days shy of the statutory deadline. However, this period is tolled by the instant petition and any pending state court motions. . . . If, however, a period of three days has elapsed between (1) the conclusion of the instant action and commencement of state court proceedings, and (2) the conclusion of state court proceedings and the commencement of another federal habeas petition, petitioner will lose his right to proceed in federal court.Id. at 8-9.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure, the parties had ten (10) days to file written objections. A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Petitioner submitted a "Response" dated May 14, 2001. Petitioner does not raise any substantive objections to the Report and Recommendation, but rather expresses concern that he will be unable to meet the federal timeliness requirements, particularly without legal assistance.
Petitioner's concern is not without merit; in fact, a recent Supreme Court decision compels the conclusion that the statute of limitations completely has expired in Petitioner's case. In Duncan v. Walker, 121 S.Ct. 2120, 2001 WL 672270 (June 18, 2001), the Supreme Court determined that the filing of an unexhausted federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2), and thus does not toll the statute of limitations. Id. at *9, Under this precedent, the time that Petitioner has spent litigating his mixed petition in federal court must be counted for statute of limitations purposes. Consequently, if this Court were to dismiss the petition on exhaustion grounds, Petitioner would be time-barred from filing a new petition in federal court upon conclusion of the state proceedings.
The Second Circuit has suggested that in such circumstances, where the timeliness of a collateral attack is in jeopardy, the appropriate course is to retain jurisdiction over the exhausted claims and stay further proceedings pending prompt exhaustion. See Zarvela v. Artuz, ___ F.3d ___, 2001 WL 671762, at *4 (2d Cir. June 26, 2001). However, the Second Circuit cautioned that the stay should be conditioned upon the initiation of state proceedings within a limited time span, normally 30 days, and a return to the district court after full exhaustion within a similar limited period. Id. at *5 The conditional stay is intended to alert Petitioner to the need for expeditious exhaustion, or else the stay may be vacated and the petition dismissed. Id.
Thus, this Court will stay Petitioner's insufficient evidence claim and dismiss the ineffective assistance and excessive sentence claims in order to allow Petitioner to exhaust his remedies in state court. However, Petitioner is directed to (1) initiate state proceedings within 30 days of the date of this Order, and (2) return to this Court within 30 days after the conclusion thereof. If Petitioner fails to meet these requirements, the government may move to dismiss the petition.
Petitioner alternatively may choose to drop the unexhausted claims. See id. at *2.