Ventry v. Hobbs

Filing 38

ORDER granting petitioner permission to file an amended 18 USC § 2254 petition and declining to adopt the 20 Report and Recommendations addressing Petitioner's current section § 2254 claims. Signed by Judge James M. Moody on 3/1/13. (kpr) (Additional attachment(s) added on 3/1/2013: # 1 Main Document - Correct) (thd).

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
MONTRELL DASHONE VENTRY
ADC #141556
VS.

PETITIONER

NO. 5:10CV00233

RAY HOBBS, Director
Arkansas Department of Correction

RESPONDENT
ORDER

Petitioner, through appointed counsel seeks permission to file an amended 28
U.S.C. § 2254 petition containing his unexhausted 8th Amendment claim and
subsequently seek a stay as set forth in Rhines v. Weber, 544 U.S. 269 (2005). The Court
finds that good cause is shown for the Petitioner’s failure to exhaust his 8th Amendment
claim and Petitioner’s unexhausted claim is not plainly meritless.1 Petitioner’s motion is
GRANTED. Petitioner will have thirty (30) days from the entry of this Order to file his
amended § 2254 petition and to seek a stay.
The Court will decline to adopt the Proposed Findings and Recommendations
addressing Petitioner’s current § 2254 claims
IT IS SO ORDERED this 1st day of March, 2013.
______________________________
James M. Moody
United States District Judge

1
Courts have disagreed as to whether Miller v. Alabama, 132 S. Ct. 2455 (2012) applies
retroactively. See, Craig v. Cain, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (not retroactive); People v.
Carp, 2012 WL 5846553 (Mich.App. Nov. 15, 2012) (not retroactive); Geter v. State, 2012 WL 4448860
(Fla.App. Sept. 27, 2012) (not retroactive); State v. Simmons, 99 So.3d 28 (La.2012) (allowing for
resentencing on collateral review in light of Miller ); People v. Morfin, 2012 WL 6028634 (Ill.App. Nov.
30, 2012) ( Miller retroactive).

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