Parks v. Ryan

Filing 26

ORDER ACCEPTING 20 Judge Duncan's Report and Recommendation. Faye Parks' Amended Petition is dismissed without prejudice. A certificate of appealability and leave to proceed in forma pauperis are DENIED because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Douglas L Rayes on 9/23/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,

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No. CV-13-08108-PCT-DLR

Edward Faye Parks,

ORDER

vs.
Charles L. Ryan, et al.,
Respondents.

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Following a jury trial in Mohave County Superior Court in 2012, Petitioner

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Edward Faye Parks was found guilty of two counts of aggravated assault and one count

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of disorderly conduct with a weapon. The trial court sentenced Mr. Parks to concurrent

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sentences, the longest of which is 15.75 years.

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Mr. Parks filed a petition for writ of habeas challenging his convictions on

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multiple grounds. (See Doc. 8 at 6–8.) The Court referred the petition to United States

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Magistrate Judge David K. Duncan for report and recommendation ("R&R"). (See Doc.

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2.)

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because Mr. Parks has not exhausted state remedies. (Doc. 20 at 2.)

Judge Duncan recommended that the Court dismiss the petition without prejudice

Mr. Parks filed objections to the R&R. (Doc. 22.) For the reasons that follow, the

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Court will accept the R&R’s conclusions and dismiss the petition without prejudice.

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I.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge.

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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II.

Analysis.

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Mr. Parks objects to the finding in the R&R that he has not exhausted state

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remedies. (Doc. 22 at 2.) Mr. Parks claims that he has not failed to exhaust state

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remedies and states that “it’s the fault of appointed counsel.” (Id.) In other words, Mr.

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Parks does not dispute that a petition for post-conviction relief is pending in state court,

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but appears to take issue with the pace at which that case is proceeding. (Id.; see also

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Docs. 24, 25.) Because Mr. Parks’ initial post-conviction proceedings are still pending in

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Mohave County Superior Court, the Court agrees with Judge Duncan’s finding that Mr.

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Parks’ habeas petition is premature. Accordingly,

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IT IS ORDERED that Judge Duncan’s R&R (Doc. 20) is ACCEPTED.

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IT IS FURTHER ORDERED that Edward Faye Parks’ Amended Petition is

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dismissed without prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability and leave to

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proceed in forma pauperis are DENIED because dismissal of the Petition is justified by a

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plain procedural bar and jurists of reason would not find the ruling debatable.

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Dated this 23rd day of September, 2014.

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Douglas L. Rayes
United States District Judge

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