Perkins v. LaValley, No. 1:2011cv03855 - Document 24 (S.D.N.Y. 2011)
Court Description: MEMORANDUM OPINION AND ORDER: The Court has received the attached pro se petitioners application for an extension of time to file his reply memorandum. The petitioners application is granted. The petitioner should submit his reply memorandum by Janu ary 10, 2012. The petitioner has also requested that the Court stay his petition for habeas corpus. If the petitioner seeks to stay consideration of his petition, he should make a motion for a stay explaining why he satisfies the requirements for a stay. To the extent that the current letter is an application for a stay, it is denied without prejudice to renewal upon a proper showing. (Signed by Judge John G. Koeltl on 12/14/2011) (mro)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY PERKINS, 11 Civ. 3855 (JGK) Petitioner, MEMORANDUM OPINION AND ORDER - against THOMAS LAVALLEY, Respondent. JOHN G. KOELTL, District Judge: The Court has received the attached pro se petitioner s application for an extension of time to file his reply memorandum. The petitioner s application is granted. The petitioner should submit his reply memorandum by January 10, 2012. The petitioner has also requested that the Court stay his petition for habeas corpus. The Court may stay a habeas petition to allow for exhaustion of claims in state court if the petitioner can demonstrate that: (1) good cause exists for failing to exhaust the claims previously, (2) the claims are potentially meritorious, and (3) the petitioner did not intentionally engage in dilatory litigation tactics. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Vasquez v. Parrott, 397 F.Supp.2d 452, 464 (S.D.N.Y. 2005). In the attached letter, the petitioner acknowledges the respondent s argument that his petition includes both exhausted and unexhausted claims. However, he does not address the merits of the respondent's argument as to why the allegedly unexhausted claims are now procedurally barred and deemed exhausted. The petitioner does not assert that it is now possible for him to return to state court, where he has already concluded his direct appeal, in order to exhaust the allegedly unexhausted claims. Nor does the petitioner explain why there was good cause for his alleged failure to exhaust any claims previously, or whether any allegedly exhausted claims are potentially meritorious. If the petitioner seeks to stay consideration of his petition, he should make a motion for a stay explaining why he satisfies the requirements for a stay. To the extent that the current letter is an application for a stay, it is denied without prejudice to renewal upon a proper showing. SO ORDERED. Dated: New York, New York December 14, 2011 . Koeltl 2 Anthony Perkins 08 A 2935 Clinton Corr. Facility POBox 2000 Dannemora N.Y. 12929 'IlIE HONORABLE John G. I:eeltl United states District Court Southern District Of New York New York N.Y. 10007-1312 I~©~OW1m RD!~ 1 .. 'IW 11 IU CHAMBEASOF JOHN G. KqELTL U.S,D,,,,, Date: December 4- ,2011 RE: Perkins v. lAVally, 11-civ.-3855(JGK) Dear Judge Koeltl, I am writing concerning the extension'lof time that you granted upon my request dated November 4th and the 7th of 2011. In that order to the records management your honor order them to send me copies of requested documents. They only send half. I wrote to them and received the other ones on about November 28, 2011. Your Honor because of my difficulty fully understanding these legal issues and just quite how to present these argument to the court. I am force to yet again request an second extension of time to go over these papers \ilith lIome one more knowlcedeable than myself concerning these issues within the law library of inmates clerks. But first I must seek premission/authozation from the Superintendent of this facility. I have attached a copy of that letter. Based on the responents response there seem to be the issue of my filling of an mixed petition of exhausted and unexhausted claims. It is my understanding of such thus far that the court should stay,rahter then dismiss a mixed petition containing mixed claim s/issues if the petitioner has good cause for his failure to exhaust the unexhausted claim s. I ensure the court that I am not engaging in intentional dilatory litigation tactics. -2 I request your honors understanding that I am a layman to these matters but I am trying my best to understand these things before I present them to the courts attention for your honors :consideration. I once again thank you in advance for your time,attentiion,and consideration. Clinton rr; Facility 2000 Dannemora N.Y. 12929 P 0 cc: Alyson J. Gill Assistant Attorney General 120 Broadway New York N.Y. 10271- 0332 ox TO: Thomas La Valley, Superintendent. Clinton Corr. Facility From: AnthonY'Perkruns # 08A2935 Date: December 4, 2011 RE : Request for authozation for legal assistant. From law library staff. Dear Sir, IT is my understanding that in order to receive assistant from the library or for them to be in possesion of any of my legal papers I first had to seek premission or autgoraation from you. I am at this time making such an requst to be allow to receive assistance from the staff workers with my legal work within the Southern District Of NewYork. I thank you in advance for your attention to this matter cc: District Judge Honorable John G. Koeltl Southern District Of New York 2~ Alyson J. Gill assistant Attorney General State Of New York 3- File Clerk of court Pro Se Office TIlE HONORABLE John G. Koeltl United Stats District Court/ Southern District Of New York 500 Pearl Street NEt':v,york N.Y. 10007 -1312 Att: Office of records management; Noveme1:ler <'16 , 2011 RE: Perkins v. Lavally civ 3855 (JGK) DEar Sir/madam, I recieved an order from Judge John G, Koeltl, which was sent to your office on 11/10/11 along with an attached letterof mf request for copies of the petition as well as all related eahibits, that were submitted with the petition on 5/23/11. Upon recueving this information from your office two items were mtssing.Num1:ler 2. on the affidavit of service, The brief and reply brief which was filed in the state court with; the Appellate Division:First Department. These items were included with the filling of the petition -in this matter and I am in eed of those copies as well. n I thank again for your time, attetion to my request. itted Clinton Facility POX 2000 Dannemora, N.Y.12929 cc; Alyson J. Gill Assistant Attorney General 120 Broadway New York, N.Y. 10271-0332
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