Ayuso v. LaValley

Ayuso v. LaValley

Petitioner:	Marcus Ayuso
Respondent:	Thomas LaValley
Case Number:	1:2012cv00932
Filed:	February 21, 2012
Court:	US District Court for the Eastern District of New York
Office:	Brooklyn Office
Presiding Judge:	Brian M. Cogan
Nature of Suit:	Habeas Corpus (General)
Cause of Action:	28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Jury Demanded By:	None

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Date Filed	Document Text
May 1, 2012	Filing 12 MEMORANDUM DECISION AND ORDER, This Court cannot give petitioner the options set forth in Rose because there is no mixed petition before this Court. The petition does not set forth any grounds for relief at all. When a petitioner has not pled both ex hausted and unexhausted claims in his petition, the Court may not provide petitioner with the options available in mixed petition cases. For the same reason, this Court may not grant petitioner's request for a stay of his habeas proceeding while petitioner exhausts his remaining claims in state court. (Denying 11 Motion to Stay) Although a sec. 2254 petitioner may be entitled to a stay if he meets the requirements set forth by the Supreme Court in Rhines v. Weber, 544 U.S. 269, 125 S. Ct . 1528 (2005), that only applies to a petition containing both exhausted and unexhausted claims. According to Rhines, a sec. 2254 petitioner is not entitled to a stay of hismixed petition unless he demonstrates: 1) that he had "good cause" for failing to exhaust his claims in state court before bringing his federal habeas petition; and 2) that his unexhausted claims are "potentially meritorious." For this Court to determine whether petitioner can be afforded the choices set f orth in Rose and whether petitioner might be entitled to a stay pursuant to Rhines, petitioner must set forth each of his unexhausted claims in detail. Petitioner's submission is due within 20 days from the date of this Order. If he elects to pu rsue a stay, petitioner must explain to this Court: 1) why he failed to exhaust all of his claims before bringing this federal action; and 2) why his unexhausted claims are "potentially meritorious." If petitioner elects to pursue a stay, h e should also submit copies of the papers he has filed in state court in support of his unexhausted claims. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 4/30/12) c/m by chambers. (Galeano, Sonia)
April 10, 2012	Filing 9 MEMORANDUM DECISION AND ORDER, Because petitioner did not brief his claims, he may make any submission he deems appropriate within 20 days from issuance of this decision, and the Court will consider any arguments raised in such submission. If any of petitioner's arguments appear meritorious, the Court will then direct a further submission from respondent. No submission is required from respondent at this time. The Clerk is directed to refrain from entering judgment pending further Order. A Certificate of Appealability shall not issue re: 1 Petition for Writ of Habeas Corpus. Further, the Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 4/09/2012) c/m by chambers. (Galeano, Sonia)

Date Filed

Document Text

May 1, 2012

Filing 12 MEMORANDUM DECISION AND ORDER, This Court cannot give petitioner the options set forth in Rose because there is no mixed petition before this Court. The petition does not set forth any grounds for relief at all. When a petitioner has not pled both ex hausted and unexhausted claims in his petition, the Court may not provide petitioner with the options available in mixed petition cases. For the same reason, this Court may not grant petitioner's request for a stay of his habeas proceeding while petitioner exhausts his remaining claims in state court. (Denying 11 Motion to Stay) Although a sec. 2254 petitioner may be entitled to a stay if he meets the requirements set forth by the Supreme Court in Rhines v. Weber, 544 U.S. 269, 125 S. Ct . 1528 (2005), that only applies to a petition containing both exhausted and unexhausted claims. According to Rhines, a sec. 2254 petitioner is not entitled to a stay of hismixed petition unless he demonstrates: 1) that he had "good cause" for failing to exhaust his claims in state court before bringing his federal habeas petition; and 2) that his unexhausted claims are "potentially meritorious." For this Court to determine whether petitioner can be afforded the choices set f orth in Rose and whether petitioner might be entitled to a stay pursuant to Rhines, petitioner must set forth each of his unexhausted claims in detail. Petitioner's submission is due within 20 days from the date of this Order. If he elects to pu rsue a stay, petitioner must explain to this Court: 1) why he failed to exhaust all of his claims before bringing this federal action; and 2) why his unexhausted claims are "potentially meritorious." If petitioner elects to pursue a stay, h e should also submit copies of the papers he has filed in state court in support of his unexhausted claims. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 4/30/12) c/m by chambers. (Galeano, Sonia)

April 10, 2012

Filing 9 MEMORANDUM DECISION AND ORDER, Because petitioner did not brief his claims, he may make any submission he deems appropriate within 20 days from issuance of this decision, and the Court will consider any arguments raised in such submission. If any of petitioner's arguments appear meritorious, the Court will then direct a further submission from respondent. No submission is required from respondent at this time. The Clerk is directed to refrain from entering judgment pending further Order. A Certificate of Appealability shall not issue re: 1 Petition for Writ of Habeas Corpus. Further, the Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 4/09/2012) c/m by chambers. (Galeano, Sonia)

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Respondent: Thomas LaValley
Represented By:	NEW YORK STATE ATTORNEY GENERALS OFFICE - GENERIC
Represented By:	QUEENS COUNTY DISTRICT ATTORNEYS OFFICE - GENERIC
Represented By:	Paul M Tarr
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Petitioner: Marcus Ayuso
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