Parks v. Ryan
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Edward Faye Parks,
Charles L. Ryan, et al.,
Following a jury trial in Mohave County Superior Court in 2012, Petitioner
Edward Faye Parks was found guilty of two counts of aggravated assault and one count
of disorderly conduct with a weapon. The trial court sentenced Mr. Parks to concurrent
sentences, the longest of which is 15.75 years.
Mr. Parks filed a petition for writ of habeas challenging his convictions on
multiple grounds. (See Doc. 8 at 6–8.) The Court referred the petition to United States
Magistrate Judge David K. Duncan for report and recommendation ("R&R"). (See Doc.
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
Court will accept the R&R’s conclusions and dismiss the petition without prejudice.
Standard of Review.
A party may file specific written objections to the R&R’s proposed findings and
recommendations. The Court must undertake de novo review of those portions of the
R&R to which specific objections are made. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the Magistrate Judge.
Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).
Mr. Parks objects to the finding in the R&R that he has not exhausted state
remedies. (Doc. 22 at 2.) Mr. Parks claims that he has not failed to exhaust state
remedies and states that “it’s the fault of appointed counsel.” (Id.) In other words, Mr.
Parks does not dispute that a petition for post-conviction relief is pending in state court,
but appears to take issue with the pace at which that case is proceeding. (Id.; see also
Docs. 24, 25.) Because Mr. Parks’ initial post-conviction proceedings are still pending in
Mohave County Superior Court, the Court agrees with Judge Duncan’s finding that Mr.
Parks’ habeas petition is premature. Accordingly,
IT IS ORDERED that Judge Duncan’s R&R (Doc. 20) is ACCEPTED.
IT IS FURTHER ORDERED that Edward Faye Parks’ Amended Petition is
dismissed without prejudice.
IT IS FURTHER ORDERED that 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.
Dated this 23rd day of September, 2014.
Douglas L. Rayes
United States District Judge
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