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Michael C. Maguire v. Secretary

November 14, 2011

MICHAEL C. MAGUIRE, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS.



ORDER

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner currently has pending a Rule 3.850 motion with the state trial court, which concerns the judgment and sentence under attack in this case.

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 post-conviction relief, were unexhausted). Having himself chosen to pursue collateral relief in State court, Petitioner may not now simultaneously maintain a federal writ, and his request to do so should therefore be rejected. As a result, the Court concludes that this case should be dismissed in light of the pending motion for post-conviction relief with the state appellate court.

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.*fn1

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Petition for Writ of Habeas Corpus filed by Michael C. Maguire is DENIED, and this case is DISMISSED WITHOUT PREJUDICE.

2. The Clerk of the Court is directed to close this case.

Copies to: OrlP-2 11/14 Michael ...


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