Quincy Jay Plessy v. Ray Hobbs

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS in its entirety, as set forth. Signed by Honorable P. K. Holmes, III on December 3, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
QUINCY JAY PLESSY
v.

PETITIONER
Case No. 2:12-CV-02118

RAY HOBBS, Director, Arkansas Department
of Correction

RESPONDENT

ORDER
Currently before the Court is the Report and Recommendations (Doc. 9) filed in this case on
September 24, 2012, by the Honorable James R. Marschewski, Chief United States Magistrate Judge
for the Western District of Arkansas. Also before the Court are Petitioner’s timely filed objections
(Doc. 12).
The Court has reviewed this case and, being well and sufficiently advised, finds as follows:
Petitioner’s objections offer neither law nor fact requiring departure from the Report and
Recommendations. Petitioner argues that the instant matter should not be stayed pending the
outcome of his Rule 37 appeal in Arkansas state court regarding his ineffective assistance of counsel
claims.

Petitioner contends that his ineffective assistance of counsel claims will become

procedurally barred for not complying with state court procedure in that he failed to timely file his
brief with the Arkansas Supreme Court Clerk after he filed a motion for extension of time “which
was denied without response from the Court.” (Doc. 12, p. 2). However, according to the docket
content info for Petitioner’s Rule 37 case, the case is still pending before the Arkansas Court of
Appeals, with a motion for extension of time for Petitioner to file his brief still awaiting action.
(Doc. 9-1).1 Therefore, as stated by the Magistrate, Petitioner’s unexhausted claims remain pending
1

The undersigned checked the docket content info of Petitioner’s Rule 37 case as of
December 3, 2012 and notes that the status remains as reflected in Doc. 9-1.

before the Arkansas Court of Appeals, and a decision should be rendered in due course. Given the
pendency of Petitioner’s Rule 37 action, it is not clear that Petitioner’s unexhausted claims will
become procedurally barred.
The Report and Recommendation is proper and should be and hereby is ADOPTED IN ITS
ENTIRETY.

Accordingly, for the reasons stated in the Magistrate Judge’s Report and

Recommendations, IT IS ORDERED that Respondent’s Motion to Dismiss (Doc. 7) is DENIED.
IT IS FURTHER ORDERED that all action on the current Petition is STAYED and held in
ABEYANCE until the Arkansas Court of Appeals rules on the Petitioner’s current Rule 37 appeal.
IT IS FURTHER ORDERED that Respondent’s Response to the Petition is due 30 days after
the Arkansas Court of Appeals renders its decision.
IT IS SO ORDERED this 3rd day of December, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE