Jerome Sueing v. Kenneth T. McKee

KAREN NELSON MOORE, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that the district court should have construed Sueing’s April 20, 2009 letter as a new habeas petition filed within the limitations period. I dissent, however, because I believe that after construing the letter as a new habeas petition, the district court should then have granted Sueing’s motion for a stay and abeyance. In the April 20, 2009 letter, Sueing explicitly asked for a stay and abeyance and explained that the delay was not intentional. See Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). With only eight days remaining for Sueing to amend his habeas petition to add his unexhausted claims, the stay and abeyance procedure was proper at that time.