Wells v. Miller

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: Sonnac anne KK DATE FILED:_01/09/2023 CARL D. WELLS, : Petitioner, : : 21-cv-11231 (LJL) -v- : ORDER SUPT MARK MILLER, : Respondent. : we KX LEWIS J. LIMAN, United States District Judge: Respondent Supt. Mark Miller (“Respondent”) submitted a motion to dismiss the petition for a writ of habeas corpus (“Petition”) of petitioner Carl D. Wells (“Petitioner”) and supporting memoranda of law. See Dkt. Nos. 27, 28, 45. In his responsive briefing, Petitioner argues that the delay in his direct appeal should excuse his failure to exhaust the claims raised in the Petition. See Dkt. Nos. 49 § 4, 38 {| 6-8. Neither party has adequately addressed whether Petitioner’s failure to exhaust should be excused under the standard set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), which the Second Circuit has suggested applies to the exhaustion of habeas claims. See Roberites v. Colly, 546 F. App’x 17, 19 (2d Cir. 2013). Both parties are directed to submit supplemental letter briefing, not to exceed three single-spaced pages, by January 27, 2023 that addresses whether Petitioner’s failure to exhaust his habeas claims should be excused. Respondent should also provide an update on the status of Petitioner’s direct appeal and the anticipated timeline for hearing and deciding the appeal. SO ORDERED. wy iw Dated: January 9, 2023 tl ME a New York, New York LEWIS J. LIMAN United States District Judge