Schack v. Florida Attorney General et al

Filing 26

ORDER granting 21 motion to stay and the Petition is stayed pending the result of the state court claim. The Petitioner shall file a status every 60 days, and the Clerk of the Court is directed to flag the case as STAYED and administratively close the case. Signed by Judge John E. Steele on 10/20/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARK SCHACK,
Petitioner,
v.

Case No:

2:16-cv-438-FtM-29MRM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
ORDER
This matter comes before the Court on pro se Petitioner's
motion to stay and hold in abeyance his habeas petition until the
resolution of all state remedies (Doc. #21) filed on May 8, 2017.
Petitioner states that he still has a remedy in the Second District
Court of Appeals based upon the decision in Wardlow v. State, 2017
WL 945528 (Fla. 2d DCA Mar. 10, 2017).

In Wardlow, appellate

counsel

instruction

failed

manslaughter

to

argue

constituted

that

the

jury

fundamental

error

for

regarding

including

an

element of intent not present in the statutory definition of the
crime. Id.
The Florida Attorney General conceded that the manslaughter
jury instruction given to Wardlow’s jury was a fundamental and
reversible error under Florida law. Id.

The facts in Wardlow are

similar to the facts in Petitioner’s case in that Petitioner also

brings a claim that he was denied effective assistance of appellate
counsel

for

instruction.

counsel’s

failure

to

challenge

the

manslaughter

Petitioner moves for a stay while his motion based

on Wardlow proceeds in state court.
Before a district court can grant habeas relief to a state
prisoner under § 2254, the petitioner must exhaust all state court
remedies that are available for challenging his conviction, either
on direct appeal or in a state post-conviction motion. See §
2254(b)1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“[T]he state prisoner must give the state courts an opportunity
to act on his claims before he presents those claims to a federal
court in a habeas petition.”).

A state prisoner “‘must give the

state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process,’ including review by the state's court
of last resort, even if review in that court is discretionary.”
Pruitt v. Jones, 348 F.3d 1355, 1358–59 (11th Cir. 2003).
To exhaust a claim, a petitioner must make the state court
aware of both the legal and factual bases for his claim.

See

Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995) (“Exhaustion of state
remedies

requires

that

the

state

prisoner

‘fairly

presen[t]

federal claims to the state courts in order to give the State the

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opportunity to pass on and correct alleged violations of its'
prisoners federal rights.’”)). A federal habeas petitioner “shall
not be deemed to have exhausted the remedies available in the
courts of the State ... if he has the right under the law of the
State

to

raise,

by

any

available

procedure,

the

question

presented.” Pruitt, 348 F.3d at 1358. The prohibition against
raising an unexhausted claim in federal court extends to both the
broad legal theory of relief and the specific factual contention
that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d
1317, 1344 (11th Cir. 2004).
The Supreme Court in Rhines v. Webber, held that “it likely
would be an abuse of discretion for a district court to deny a
stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.”
544

U.S.

269,

circumstances,

278

(2005)

the

district

(emphasis
court

in

original).

should

stay,

In

such

rather

than

dismiss, the mixed petition. Id.; see Rose v. Lundy, 455 U.S. 508
522 (1982) (the total exhaustion requirement was not intended to
“unreasonably impair the prisoner's right to relief”).
In this instance, Petitioner’s Petition is a mix of exhausted
and unexhausted claims.

Petitioner had good cause for his failure

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to exhaust because the relief sought in the Second District Court
of Appeals was not available until the Second District decided
Wardlow in March of 2017.
dilatory tactic.

Thus, Petitioner’s Motion is not a

Furthermore, without making a determination on

the merits of Petitioner’s claim, the court notes that the Attorney
General in her response expressed that Petitioner “may be entitled
to relief in the Second District pursuant to Wardlow v. State,
2017 WL 945528 (Fla. 2d DCA March 10, 2017).”
unexhausted claim is potentially meritorious.

So Petitioner’s

As such, good cause

exist to grant the motion to stay the case and hold it in abeyance
until the state claim for ineffective assistance of appellate
counsel is exhausted.
Accordingly, it is hereby
ORDERED:
Pro Se Petitioner's motion to stay and hold in abeyance his
habeas petition until the resolution of all state remedies (Doc.
#21) is GRANTED.
(1)

Petitioner’s

Petition

is

hereby

STAYED

pending

the

result of the state court claim.
(2)

The Petitioner is directed to file a status report every
sixty days informing the Court of the claim in state
court.

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(3)

The Clerk of the Court is directed to flag the case as
STAYED and administratively close the case.

DONE and ORDERED at Fort Myers, Florida, this
of October, 2017.

Copies:
Mark Schack
Counsel of Record
SA: FTMP-2

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20th

day