Martinez v. Tomes

Opinion

UNITED STATES DISTRICT COURT PAOLA ACY Pr trey SOUTHERN DISTRICT OF NEW YORK □ □ ee re ee ee ee Sy Arey: bye vee Berccirigtiaflam matchmine cite coven □ MARTINEZ, ce zo Petitioner, ORDER GRANTING STAY -against- 19 Civ. 7651 (XMK) (PED) TOMES, Respondent. □□□ een ee ee ee re ene Petitioner secks a stay of this action pending resolution of a § 440.10 motion he has filed in the trial court. (Dkt. 14.) The Court directed Respondent to submit any reply to Petitioner’s request by June 5, 2020, (Dkt. 15) No reply or opposition has been received. A court may stay a “mixed” petition that contains both exhausted and unexhausted claims if: (1) good cause exists for the petitioner’s failure to exhaust his claims in state court; (2) the unexhausted claims are not “plainly meritless;” and (3) the petitioner has not engaged in “intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Good

cause exists here because Petitioner timely submitted this request in order to protect his unexhausted claim and is secking, without delay, to exhaust the claim in state court. See Pierre

v. Ercole, 607 F. Supp. 2d 605, 608 (S.D.N.Y. 2009). In addition, the Court cannot conclude as of now that Petitioner’s unexhausted claim is so plainly without merit that a stay should be denied. Finally, there is no evidence to indicate that Petitioner has engaged in intentionally dilatory litigation tactics. Accordingly, Petitioner’s unopposed motion for a stay is GRANTED. These proceedings are stayed pending resolution of Petitioner’s § 440.10 motion (including any available appellate review.) Upon resolution of that motion, Petitioner must move, within thirty

(30) days, to lift the stay and reopen this case for further proceedings. See Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir, 2001). Petitioner is hereby notified that, if he does not comply with this condition of the stay, the Court may vacate the stay nunc pro tunc as of the date the stay was entered and may dismiss his habeas petition, See id. Petitioner is also advised that he must

prepare and file an amended petition setting forth all of his claims, including those raised in his § 440.10 motion, within thirty (30) days after his state court remedies have been exhausted.

Dated: September 9, 2020 SO ORDERED White Plains, New York ppt OS iy por pinial

PAE E. DAVIS, U.S.M.J. □

Chambers has mailed a copy of this Order to: Miguel Martinez Five Points Correctional Facility Caller Box 119 Romulus, NY 14541