Smickle v. Superintendent, Shawangunk Correctional Facility

Opinion

USDCSDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: Randel Smickle, 07/14/2023 Petitioner, -against- 23-CV-01634 (JHR) (SDA) Superintendent, Shawangunk Correctional ORDER Facility, Respondent. STEWART D. AARON, United States Magistrate Judge: WHEREAS, the Court has before it an unopposed request by pro se Petitioner Randel Smickle (“Petitioner”) to stay this action pending resolution of his Criminal Procedure Law (“CPL”) § 440.10 motion (see Am. Pet., ECF No. 8, at PDF p. 7; Resp.’s Interim Response, ECF No. 17); and WHEREAS, by Order, dated June 29, 2023, the Court directed Petitioner to file a letter setting forth good cause for his failure to exhaust his as-yet unexhausted ineffective assistance of counsel claim in state court prior to filing the Petition 6/29/23 Order, ECF 18); and WHEREAS, on July 14, 2023, the required letter from Petitioner was filed (Smickle Ltr., ECF No. 19); and WHEREAS, the Court finds that Petitioner’s reasons for filing the Petition prior to exhausting his ineffective assistance of counsel claim constitutes good cause under the second Rhines factor, due to his reasonable confusion as to the proper procedure, see Whitley v. Ercole, 509 F. Supp. 2d 410, 419 (S.D.N.Y. 2007). NOW, THEREFORE, IT IS HEREBY ORDERED, AS FOLLOWS:

1. This action is stayed while Petitioner exhausts his ineffective assistance of counsel claim. 2. Petitioner shall update the Court when he receives a decision on his pending CPL § 440.10 motion and, in the event that the motion is denied, shall again update the Court once he has received a decision on any application for leave to appeal. 3. No later than December 31, 2023, Respondent shall file a letter updating the Court as to the status of Petitioner’s CPL § 440.10 motion. SO ORDERED. Dated: New York, New York July 14, 2023 List A. STEWART D. AARON United States Magistrate Judge