Pitts v. Kelley

Filing 58

ORDER granting in part and denying in part 45 Motion. The 5/16/2017 Order is adopted as supplemented. Kelley's 26 Motion to Dismiss is denied without prejudice. The Court concludes that Magistrate Judge Kearney did not clearly err or misapply the law in granting a stay. It will remain in place. Signed by Judge D. P. Marshall Jr. on 9/21/2017. (jak)

Download PDF
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION EUGENE ISSAC PITTS, ADC #73537 v. PETITIONER No. 5:15-cv-354-DPM WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER 1. Motion, N!l 45, granted in part and denied in part. As Kelley suggests, this Court construes the Magistrate Judge's 16 May 2017 Order as a recommendation. NQ 38; FED. R. Crv. P. 72(b). On de nova review, that recommendation is adopted as supplemented. 2. Kelley's motion to dismiss, N!l 26, is denied without prejudice. Deciding whether Pitts' s successive petition is timely will require consideration of fact-intensive issues, such as diligence and maybe equitable tolling. 28 U.S.C. § 2244(d)(l)(D); Martin v. Fayram, 849 F.3d 691, 698 (8th Cir. 2017) . And if Pitts' s petition is timely, then the Court will have to decide whether, in light of the whole record, any reasonable factfinder would have found him guilty of murdering Dr. Jones but for the alleged error. 28 U.S.C. § 2244(b)(2)(B)(ii). These questions run parallel to the issues the state courts have taken up in Pitts' s coram nobis proceedings. E.g., Howard v . State, 2012 Ark. 177, at 4, 13, 403 S.W.3d 38, 42, 47 (2012). Kelley hasn't filed the state court record. And because of the ongoing coram nobis proceedings, that record is still being developed . In these circumstances, comity favors letting the Arkansas courts consider these fact-intensive issues first rather than conducting duplicative parallel proceedings here. E.g., Rhines v. Weber, 544 U.S. 269, 273-74 (2005). The Court therefore concludes that Magistrate Judge Kearney did not clearly err or misapply the law in granting a stay. F ED. P. 72(a). It will remain in place. So Ordered. fr. D.P. Marshall United States District Judge -2- R. CIV.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?