Petitioners Section 2254 Unexhausted Claims Response Form

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ___________________________________, (Petitioners name and inmate number) Petitioner, _____-CV-________ v. ___________________________________, (Respondents name) Respondent. PETITIONERS 2254 UNEXHAUSTED CLAIMS RESPONSE FORM Petitioner, having filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, and the Court havingadvised petitioner that it appears that one or more of the grounds for the petition has not been exhausted, asrequired by 28 U.S.C. 2254(b), petitioner hereby informs the Court that the following grounds for the petitionhave not been exhausted: 1. 2. 3. 4. (Use additional paper as needed.)Accordingly, the petitioner hereby advises the Court that he wishes to choose the following option with respectto this petition (petitioner should check one option only, and petitioner should file with this response anysupporting papers called for by the selected option): __________ Option One: Petitioner chooses to file an amended petition within 30 days of this response,which raises only those grounds for which state court remedies have been exhausted, thereby withdrawing fromthis Courts consideration all grounds for which such remedies have not been exhausted. Petitioner has been<<<<<<<<<********>>>>>>>>>>>>> 2informed that the effect of such withdrawal may be that petitioner will not be permitted to raise the withdrawngrounds in a second or successive habeas petition, see 28 U.S.C. 2244(b). The proposed amended petitionis attached to this response. __________ Option Two: Petitioner chooses to withdraw the entire petition herein to permit time to exhaustall of the claims. Petitioner has been informed that petitioner may then raise the claims in another petition, whichwill not be considered a second petition for purposes of 2244(b) and therefore will not be foreclosed by thesecond or successive petition requirements of the statute. Petitioner has also been informed that the applicablestatute of limitations is tolled only during the time in which a properly filed application for State post-convictionor other collateral review ... is pending. 28 U.S.C. 2244(d)(2).__________ Option Three: Petitioner asks the Court to dismiss his unexhausted claims and stay thispetition in order to permit him to exhaust his state court remedies with respect to the unexhausted claims forhabeas relief. See Zarvela v. Artuz, F.3d , 2001 WL 671762 (2d Cir. June 14, 2001). Petitioner has beeninformed that this choice means that the stay is conditioned on petitioners initiation of exhaustion within 30 days,and his return to the district court within 30 days of the completion of the effort to exhaust. The petitioneracknowledges that the above list of unexhausted claims are the claims which should be dismissed forexhaustion purposes. Petitioner also recognizes that standard rules for amendment under Fed. R. Civ.P. 15, including the relation back rules of Rule 15(c), will be applicable to his request to amend thepetition to include the dismissed claims, once they are exhausted. See Zarvela, F.3d at . 2001 WL671762, at * . __________ Option Four: Petitioner is procedurally barred from raising some or all of his unexhaustedclaims. In order to permit the Court to properly evaluate the status of the above claims, petitioner herebyprovides the Court with the following information regarding why he may not still raise the claims in state court. 2<<<<<<<<<********>>>>>>>>>>>>> 3 (a) why the claim cannot now be raised and therefore exhausted, (b) why petitioner failed to exhaust that claimwhen it could have been raised, and (c) describing what, if any, prejudice petitioner has experienced as a resultof the failure to exhaust that claim. 1. a. b. c. 2. a. b. c. 3.a. b. c. 4. a. b. c. (Use additional paper as needed.)If petitioner chooses this fourth option, and if the Court finds that the cause and prejudice is legally sufficient,the claim will be deemed exhausted and the petition determined on the merits. Petitioner recognizes, however,that if the Court finds that the cause and prejudice are legally insufficient, the Court will dismiss thepetition and all the grounds therein with prejudice. Date: _____________________ _________________________________________________________ (Petitions signature and inmate number) 3