Rosier v. Secretary, DOC et al

Filing 45

ORDER denying 42 Motion to stay or for abeyance. Signed by Judge John E. Steele on 10/7/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BELAFONTE LOPEZ ROSIER,
Petitioner,
v.

Case No:

2:10-cv-457-Ftm-29UAM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
___________________________________/
ORDER
This case is before the Court on Petitioner Belafonte Lopez
Rosier’s (“Petitioner’s”) “Motion for a Stay or Abeyance” (Doc.
42, filed August 30, 2013).

For the reasons set forth in this

Order, Petitioner's motion to stay is DENIED.
On

July

21,

2010,

Petitioner

Belafonte

Lopez

Rosier

(“Petitioner”) filed a petition for writ of habeas corpus (Doc.
1).

More

than

three

years

later,

this

Court

dismissed

the

petition with prejudice (Doc. 38, filed August 12, 2013).

In

the order of dismissal, portions of claims one through four were
dismissed as unexhausted and procedurally barred (Doc. 17-23).
Petitioner now asks the Court to stay its order of dismissal on
the basis that the unexhausted portions of these claims are
“currently

pending

Respondents

have

state

filed

a

habeas
response

review”
to

(Doc.

Petitioner's

42

at

motion

1).
in

which they argue that Petitioner has neither shown good cause

for

his

grounds

failure

to

he

pursuing

is

exhaust

his

in

grounds

state

nor

court

shown
are

that

the

potentially

meritorious claims of constitutional proportion (Doc. 44).
A federal court may not grant a § 2254 habeas petition
unless the petitioner first exhausted the remedies available in
the courts of the state in which he was convicted. 28 U.S.C. §
2254(b); Preiser v. Rodriguez, 411 U.S. 475 (1973); Slayton v.
Smith, 404 U.S. 53 (1971).

Petitioner does not assert that the

state court claims were pending when he instituted this action
or soon thereafter.1 Rather, Petitioner appears to ask this Court
to stay this action so that he can now pursue in state court the
grounds that this Court found to be procedurally barred in its
order of dismissal.
In

Rhines

v.

Weber,

the

United

States

Supreme

Court

determined that a district court has the discretion to “stay and
abey”

an

unexhausted

habeas

petition.

544

U.S.

269

(2005).

However, the Court explained that stay and abeyance should only
be allowed in limited circumstances and is only appropriate if
the court finds that there was good cause for the petitioner’s
failure

to

exhaust

his

claims

in

state

court

and

if

the

petitioner’s unexhausted claims are potentially meritorious. Id.
1

The pleadings submitted in state court appear to consist of
unsigned “Emergency Petition for Writ of Habeas Corpus” filed
or about August 22, 2013 and an emergency petition for writ
certiorari filed on or about September 25, 2013 (Doc. 44-2
33-34).
2

an
on
of
at

at 277-78. The Court further determined that a district court
should

not

stay

a

case

when

it

would

undermine

§

2254's

mandatory two-step process of exhausting state court remedies
before pursuing federal habeas relief. “Staying a federal habeas
petition frustrates AEDPA’s objective of encouraging finality by
allowing a petitioner to delay the resolution of the federal
proceedings.
federal

It

habeas

also

undermines

proceedings

AEDPA’s

by

goal

decreasing

of

streamlining

a

petitioner's

incentive to exhaust all his claims in state court prior to
filing his federal petition.” Id. at 277.
Petitioner

fails

to

establish

good

cause

to

excuse

his

failure to exhaust his state court remedies at some point prior
to the filing and final disposition of his habeas petition.

In

fact, Petitioner does not offer any reason for his failure to
exhaust the claims in a timely manner.

The Court notes that

Petitioner was aware of the need to exhaust his claims no later
than July 29, 2011 when the respondents argued that his habeas
claims should be denied due to his failure to exhaust them (Doc.
25).
Likewise, the issues which Petitioner has recently raised
in his amended petition for habeas relief in state court are
centered

around

the

State’s

alleged

violations

of

Florida’s

“speedy trial” rules and other procedural irregularities (Doc.
44-2).

As noted in this Court’s order of dismissal (Doc. 38 at
3

21), a claim based upon a misapplication of Florida law is not
cognizable on habeas review. See Lewis v. Jeffers, 497 U.S. 764,
780 (1990) (recognizing that federal habeas corpus relief does
not lie for errors of state law).
Petitioner

has

demonstrated

neither

good

cause

for

his

failure to exhaust his claims nor has he demonstrated that his
unexhausted

claims

are

potentially

meritorious.

Accordingly,

Plaintiff’s motion to stay (Doc. 42) is denied.
DONE and ORDERED in Fort Myers, Florida, this
of October, 2013.

SA: OrlP-4 10/4/13
Copies to: all parties of record

4

7th

day