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)

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.