United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on a petition for writ of habeas
corpus filed by Petitioner under 28 U.S.C. § 2254 (ECF
No. 1). Respondent filed a motion to dismiss the petition as
premature, on the ground that Petitioner has not exhausted
his state court remedies, because a post-conviction
proceeding, in which Petitioner has presented the same claim
he presents in his § 2254 petition, is still pending
(ECF No. 28). Respondent requests dismissal of the §
2254 petition without prejudice to enable Petitioner to
satisfy § 2254's exhaustion requirement
(id.). Petitioner filed a response conceding that
his petition is premature because his sole claim for relief
is still pending review in state court (ECF No. 30).
Petitioner joins Respondent's request that the court
dismiss the § 2254 petition without prejudice to permit
him to exhaust his state court remedies (id.).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues raised by the parties, it is the
opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rules Governing
Section 2254 Cases 8(a). It is further the opinion of the
undersigned that the petition should be dismissed, without
prejudice, for Petitioner's failure to satisfy the
exhaustion requirement prior to commencing this federal
It is a
long-standing prerequisite to the filing of a federal habeas
corpus petition that the petitioner have exhausted available
state court remedies, 28 U.S.C. § 2254(b)(1),
thereby giving the State the “‘opportunity to
pass upon and correct' alleged violations of its
prisoners' federal rights.” Duncan v.
Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To
satisfy the exhaustion requirement, the petitioner must
“fairly present” his claim in each appropriate
state court, alerting that court to the federal nature of the
claim. Duncan, 513 U.S. at 365-66;
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.
at 277-78. If a petitioner fails to exhaust state remedies, a
district court should dismiss the petition without prejudice
to allow exhaustion. See Rose v. Lundy, 455 U.S.
509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Petitioner concedes that has not exhausted the state court
remedies available to him, and he requests dismissal of this
case without prejudice to his refiling upon fully exhausting
his claim. This court should grant Petitioner's request.
is advised that although this dismissal is without prejudice
to his filing a § 2254 petition once he has exhausted
his state court remedies, the fact that the petition is
dismissed without prejudice does not preclude a determination
that a subsequently filed § 2254 petition is untimely or
otherwise procedurally barred. Petitioner is reminded that 28
U.S.C. § 2244(d) establishes a one-year period of
limitation for applications for writs of habeas corpus
challenging state court judgments. The one-year period
normally runs from the date upon which the conviction became
final. See § 2244(d)(1). The time during which
a “properly filed” application for state
post-conviction or other collateral review is pending is not
counted toward the limitations period. See §
2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 121 S.Ct.
361, 148 L.Ed.2d 213 (2000). The pendency of a federal habeas
proceeding does not toll the one-year limitations
period. See Duncan v. Walker, 533 U.S. 167, 181, 121
S.Ct. 2120, 150 L.Ed.2d 251 (2001) (construing 28 U.S.C.
§ 2244(d)(2)) (emphasis added).
CERTIFICATE OF APPEALABILITY
11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides that “[t]he district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” If a
certificate is issued “the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254
Rule 11(a). A timely notice of appeal must still be filed,
even if the court issues a certificate of appealability. 28
U.S.C. § 2254 Rule 11(b).
2253(c) permits the issuance of a COA only where a petitioner
has made a ‘substantial showing of the denial of a
constitutional right.'” Miller-El v.
Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d
931 (2003) (quoting § 2253(c)(2)). “At the COA
stage, the only question is whether the applicant has shown
that ‘jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed
further.'” Buck v. Davis, 580 U.S.___, 137
S.Ct. 773 (2017) (quoting Miller-El, 537 U.S. at
327). Here, Petitioner cannot make that showing. Therefore,
the undersigned recommends that the district court deny a
certificate of appealability in its final order.
second sentence of Rule 11(a) provides: “Before
entering the final order, the court may direct the parties to
submit arguments on whether a certificate should
issue.” Thus, if there is an objection to this
recommendation by either party, that party may bring this
argument to the attention of the district judge in the
objections permitted to this report and recommendation.
it is respectfully RECOMMENDED:
Respondent's motion to dismiss (ECF No. 28) be
Petitioner's § 2254 petition (ECF No. 1) be
DISMISSED WITHOUT PREJUDICE for