Filed: Jun. 07, 2016
Latest Update: Jun. 07, 2016
Summary: ORDER ROY B. DALTON Jr. , District Judge . This cause before the Court on Petitioner's Motion for Protective Federal Petition Along With Stay and Abeyance of Pending Habeas Corpus ("Motion," Doc. 23). Petitioner has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition," Doc. 7) pursuant to 28 U.S.C. 2254. However, Petitioner acknowledges in the Motion that he currently has pending in the state appellate court an appeal of the denial of his motion for postconviction reli
Summary: ORDER ROY B. DALTON Jr. , District Judge . This cause before the Court on Petitioner's Motion for Protective Federal Petition Along With Stay and Abeyance of Pending Habeas Corpus ("Motion," Doc. 23). Petitioner has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition," Doc. 7) pursuant to 28 U.S.C. 2254. However, Petitioner acknowledges in the Motion that he currently has pending in the state appellate court an appeal of the denial of his motion for postconviction relie..
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ORDER
ROY B. DALTON Jr., District Judge.
This cause before the Court on Petitioner's Motion for Protective Federal Petition Along With Stay and Abeyance of Pending Habeas Corpus ("Motion," Doc. 23). Petitioner has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition," Doc. 7) pursuant to 28 U.S.C. § 2254. However, Petitioner acknowledges in the Motion that he currently has pending in the state appellate court an appeal of the denial of his motion for postconviction relief, which concerns the judgment and sentence under attack in this case. (Doc. 23 at 1).
The Court must dismiss petitions that contain both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982). Thus, when a federal habeas petition contains claims that are still pending in the state courts, and therefore unexhausted, the petition must be dismissed in order to provide the state courts with the opportunity to resolve the pending claims. See Horowitz v. Wainwright, 709 F.2d 1403, 1404 (11th Cir. 1983) ("[t]he principles of comity that form the basis for the exhaustion requirement clearly would be violated by allowing [Petitioner] to simultaneously pursue [his] appeal in Florida state court and [his] Section 2254 petition[] in federal court."); Durham v. Wyrick, 545 F.2d 41, 43 (8th Cir. 1976) (claims asserted in a federal habeas petition, which were also pending before a state court in a motion for postconviction relief, were unexhausted). Having himself chosen to pursue collateral relief in State court, Petitioner may not now simultaneously maintain a federal petition for writ of habeas corpus. As a result, Petitioner will be required to show cause why this case should not be dismissed in light of the pending appeal with the state appellate court.1
The Court also declines Petitioner's request to hold these proceedings in abeyance pending the disposition of his state court proceedings. In Rhines v. Weber, 544 U.S. 269, 277 (2005), the Supreme Court held that "stay and abeyance should be available only in limited circumstances" in section 2254 habeas actions. Id. at 277. The Court explained that stays of federal habeas cases frustrate the finality and streamlining purposes of federal habeas law. Id. Thus, a stay in this context is appropriate only where a petitioner has "good cause" for his failure to exhaust his claims in state court. Id. Here, Petitioner has not demonstrated good cause.2
Accordingly, it is hereby ORDERED as follows:
1. Petitioner's Motion for Protective Federal Petition Along With Stay and Abeyance of Pending Habeas Corpus ("Motion," Doc. 23) is DENIED.
2. Petitioner shall show cause within ten (10) why this case should not be dismissed in light of the pending appeal in the state appellate court. The failure to comply will result in the dismissal of this case without further notice.
DONE and ORDERED.
