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Restrictions imposed by Congress on filing of habeas corpus petitions by prisoners challenging their state court convictions have been a recurring theme for the 2nd U.S. Circuit Court of Appeals. Now, in the latest in a series of cases interpreting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the 2nd Circuit has decided yet another issue created by the act: the treatment of so-called mixed petitions for habeas relief. Ruling on Thursday on an issue of first impression, the 2nd Circuit said that in cases where a prisoner has exhausted state remedies on some — but not all — of his constitutional challenges to his conviction, a district court is not required to dismiss the mixed petition. The ruling, which dealt with an issue that has divided federal appellate courts, came in the case of Zarvela v. Artuz, 99-2757. The petition of Victor Zarvela challenged his 1992 conviction for second-degree murder and weapons possession. Sentenced to serve 25 years to life in prison, Zarvela’s April 1997 petition for a writ of habeas corpus presented seven claims challenging his convictions. In May 1997, he wrote federal Judge Reena Raggi of the U.S. District Court for the Eastern District of New York, seeking to withdraw his petition without prejudice so he could present a new claim to the state courts, one based on a freedom of information request that he said shed light on exculpatory information that should have been provided by the prosecution. Raggi granted the motion to withdraw, but in July 1998, a state court ruled that the information was available to Zarvela at trial. On Oct. 7, 1998, two weeks after the Appellate Division denied Zarvela’s appeal, he filed a second petition with Raggi, who dismissed it as untimely under the AEDPA’s one-year statute of limitations. After tolling several periods during which Zarvela sought state relief, Raggi concluded his petition was nine days late. On the appeal, Senior Circuit Judge Jon O. Newman said Zarvela raised three issues: “(1) whether the refiled petition was timely, (2) whether the initially filed petition remained pending due to the lack of a judgment entered upon Judge Raggi’s endorsement ruling, and (3) whether Judge Raggi should have stayed the initial petition, rather than dismissing it.” “This case illustrates the procedural complexities confronting a prisoner who endeavors to exercise his statutory right to challenge a state court conviction by means of a petition to a federal district court for writ of habeas corpus,” Newman said. A prisoner must first exhaust his state remedies, he said. If the prisoner fails to realize one of his claims has not been exhausted (and he has therefore filed what is considered a “mixed petition”), the district court must either send the prisoner back to state court or simply proceed on the claims where appeals in state courts have been exhausted. And if the prisoner wants to present a new claim, said, he must try to amend his existing petition — all the while making sure that he has complied with the AEDPA’s one-year limit. CHANGED LANDSCAPE Newman noted that the 2nd Circuit has ruled in two cases over the last 18 months on tolling provisions in the AEDPA, finding in one case that “under appropriate circumstances, the one-year period is subject to equitable tolling.” In a second case, it found that the time a habeas petition is pending in the federal courts is exempt from the one-year limit. While a prisoner could once “leisurely consider” all possible federal claims, Newman said, the AEDPA changed the landscape. “After the AEDPA, the prisoner had just one year,” he said. “If he mistakenly comes to federal court too soon, i.e., with one or more unexhausted claims, and does so late in the allotted one year, a dismissal of his mixed petition risks the loss of all of his claims because the one-year limitations period will likely expire during the time taken to initiate state court exhaustion and to return to federal court after exhaustion is completed.” The relevant Supreme Court case on the subject, Rose v. Lundy, 455 U.S. 509 (1982), which instructed district courts to dismiss mixed petitions, was decided before passage of the AEDPA, he said. Since the AEDPA, Judge Newman said, the 7th Circuit has recommended that mixed petitions be stayed, the 5th Circuit has said they should be dismissed, and the 9th Circuit has recommended a third approach: dismissal of unexhausted claims and a stay on the remaining claims. PRUNING ‘ROSE’ “Like the Seventh and Ninth Circuits, we think that the enactment of the AEDPA warrants some adjustment in the pre-AEDPA requirement of Rose v. Lundy,” Judge Newman said. “What the Supreme Court wanted to achieve, and what the AEDPA reinforces … is the assurance that a district court will not proceed to adjudicate unexhausted claims.” But Newman said the 2nd Circuit was convinced that “as to the exhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety,” adding that “in many cases, a stay will be preferable.” The court then acknowledged some problems with this approach, and announced a remedy. “We recognize, however, that a stay, unless appropriately conditioned, could permit a habeas petitioner to take an undue amount of time to pursue state court remedies,” he said. REASONABLE INTERVALS However, Newman said that concern “can easily be dispelled by allowing a habeas petitioner no more than reasonable intervals of time to present his claim to the state courts and return to federal court after exhaustion.” Therefore, Newman said, where a district court chooses to dismiss only unexhausted claims and stay the remainder, “the court should condition the stay on the petitioner’s initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited period, normally 30 days.” The stay, Newman said, is sufficient to alert the prisoner “to the need for expeditious exhaustion,” and frees the prisoner to seek an amendment to the petition. “State prisoners should have the full year allowed them by Congress to consider and prepare their federal habeas petitions, and, if it turns out that the presence of unexhausted claims and the requirements of federal law require a round trip to and from state court to accomplish exhaustion, brief intervals to meet such requirements should not be counted against that one-year period,” he said. Newman then said that Zarvela’s petition should have been stayed, “with only the unexhausted claims dismissed.” “Once we exclude the intervals while Zarvela’s initial federal petition and his state collateral challenge were pending, and treat him as if an appropriately conditioned stay had been entered, his refiled habeas petition is properly regarded as timely,” Newman said. The court then remanded the case for further proceedings. Judge Jose Cabranes and Judge Alvin W. Thompson of the U.S. District Court for the District of Connecticut, sitting by designation, joined in the opinion. Randall U. Unger briefed the case for appeal on behalf of Zarvela. Kings County Assistant District Attorneys Thomas M. Ross and Leonard Joblove represented the state.

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