Guzman v. Secretary, DOC et al

Filing 7

ORDER denying without prejudice 2 Motion for leave to proceed in forma pauperis, granting 3 Motion to Abate pending final resolution of pending state court proceedings signed by Judge Gregory A. Presnell on 9/8/2006. The clerk is directed to adm inistratively close the case. Petitioner shall file a motion to reopen within 30 days after a final decision has been rendered. Failure to do so will result in the dismissal of this case without further notice. (Clerk directed to mail copy to addresses listed on order)(AKJ, )

Guzman v. Secretary, DOC et al

Doc. 7

Case 6:06-cv-01271-GAP-UAM

Document 7

Filed 09/08/2006

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION JAMES GUZMAN, Petitioner, v. JAMES MCDONOUGH, et al., Respondents. CASE NO. 6:06-cv-1271-Orl-31JGG

ORDER This case is before the Court pursuant to a petition for writ of habeas corpus (Doc. No. 1) filed by a death-sentenced prisoner in state custody and the following matters: 1. Petitioner filed a Motion to Abate (Doc. No. 3). According to Petitioner, his motion

for rehearing, the State's motion to strike the motion for rehearing, and his motion to accept the motion for rehearing as timely filed are all still pending before the Florida Supreme Court. Petitioner states that he filed the instant petition on August 24, 2006, because if the state court determines that his motion for rehearing was untimely filed, his federal habeas wold be untimely if filed after August 25, 2006. He further alleges that the "Florida Supreme Court's ultimate action on the pending motions in that court may affect the status of claims raised in the federal Petition." (Doc. No. 3 at 2.) Petitioner seeks to have this case abated pending the Florida Supreme Court's resolution of the motions pending in that court. The Court finds that Petitioner has provided good cause for staying these proceedings. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (finding that a stay is only appropriate when there is good cause for the petitioner's failure to exhaust the claims in state court and that it would be an

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Case 6:06-cv-01271-GAP-UAM

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abuse of discretion to grant a stay when the unexhausted claims are plainly meritless or if the petitioner engaged in abusive litigation tactic or intentional delay); see also Pace v. DiGuglielmo, 544 U.S. 408 (2005) ("A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file in federal court. "). Therefore, Petitioner's Motion to Abate (Doc. No. 3) is GRANTED, and this case is STAYED pending final resolution of the pending state court proceedings. 2. 3. The Clerk of the Court is directed to administratively close this case. Petitioner shall file a motion to reopen this case within THIRTY (30) DAYS after

a final decision has been rendered regarding the pending state court proceedings. The failure to do so will result in the dismissal of this case without further notice. 4. prejudice. 5. The Clerk of the Court is directed to send a copy of this Order to Respondents and Petitioner's Motion to Proceed In Forma Pauperis (Doc. No. 2) is DENIED without

the Attorney General of Florida at the addresses listed below. DONE AND ORDERED at Orlando, Florida this 8th day of September, 2006.

Copies to: sa 9/8 Counsel of Record Department of Legal Affairs Office of the Attorney General 444 Seabreeze Boulevard, 5th Floor Daytona Beach, Florida 32118 Attorney General of Florida The Capitol, PL-01

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Tallahassee, Florida 32399-0810

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