Conahan v. Secretary, DOC et al

Filing 58

ORDER granting 51 motion to stay and the case is stayed until the Florida Supreme Court renders a final order on the second postconviction motion. Within 20 days of the final order, respondents shall notify the Court and attach a copy of the final order. See Order for details. The Clerk shall administratively close the case. Signed by Judge John E. Steele on 8/2/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL O. CONAHAN, JR.,
Petitioner,
v.

Case No:

2:13-cv-428-FtM-29MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
ORDER
This matter comes before the Court on Petitioner's Second
Motion to Stay and Abey Federal Proceedings (Doc. #51, Motion)
filed on October 27, 2017.

Respondent filed a Response to the

motion (Doc. #53) on January 5, 2018.

For the reasons set forth

herein, the Court will grant a second stay of this action.
Petitioner requests that the Court issue a second stay of
this

action

to

allow

him

to

exhaust

a

second

state

court

postconviction motion predicated upon Hurst v. Florida, 136 S. Ct.
616 (2016), Hurst v. State, 202 So. 3d 40 (Fla. 2016), and the
revised Florida Statute § 921.141, to assert a new claim: “The
eighth

and

Constitution,
receive

the

fourteenth
and

amendments

Florida

retroactive

to

Constitution,

application

established by Chapter 2017-1.”

of

the

United

require
the

Mr.

States
Conahan

substantive

(Doc. #51, ¶7).

right

Respondents oppose a further stay of this action.
at 1.

Doc. 53

Respondents argue that Petitioner’s claim raised in his

postconviction

motion

is

not

a

potentially

meritorious

claim

because is foreclosed under state law, and the Florida Supreme
Court is unlikely to reverse” the Florida trial court’s decision.
Id. at ¶6.
The Court finds a stay is appropriate in this case.
v. Weber, 544 U.S. 269, 274 (2005).

Rhines

Petitioner’s appeal of the

denial of his second motion for postconviction relief remains
active and pending in the Florida Supreme Court (Case Number SC18303).

While Respondent’s contend that the outcome of the appeal

is “unlikely,” the Florida Supreme Court’s decision could impact
any determinations on Petitioner’s penalty-phase claims.
ACCORDINGLY, it is hereby
ORDERED:
1.

Petitioner’s

Second

Motion

to

Stay

and

Abey

Federal

Proceedings (Doc. #51) is GRANTED to the extent set forth
herein.
2.

This matter is STAYED until the Florida Supreme Court
renders

a

final

order

on

Petitioner’s

second

postconviction motion pending at Case Number SC18-303.
3.

Within twenty (20) days of the Florida Supreme Court
entering

a

final

order

on

Petitioner’s

second

postconviction motion, Respondents shall notify the Court

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and attach a copy of the final Florida Supreme Court
order.
4.

If Petitioner intends on supplementing his Petition with
this additional claim, he must file a supplement marked
“Second

Supplement

to

Amended

Petition

Containing

Ground(s) __” within forty-five (45) days of the Florida
Supreme Court entering a final order.

Respondent shall

file a response to the supplement within thirty (30) days
thereafter.
5.

The Clerk of Court is directed to administratively close
this case until further order of Court.

DONE and ORDERED at Fort Myers, Florida, this
August 2018.

SA: FTMP-1
Copies:
Counsel of Record

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2nd

day of