Maguire v. Secretary, Department of Corrections et al

Filing 5

ORDER denying 2 MOTION for miscellaneous relief, specifically to hold application for writ of habeas corpus in abeyance filed by Michael C. Maguire, denying 1 Petition for writ of habeas corpus filed by Michael C. Maguire; case is dismissed without prejudice; clerk is directed to close the case. Signed by Judge Gregory A. Presnell on 11/14/2011. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MICHAEL C. MAGUIRE,
Petitioner,
v.

CASE NO. 6:11-cv-1693-Orl-31DAB

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254.
Petitioner currently has pending a Rule 3.850 motion with the state trial court, which
concerns the judgment and sentence under attack in this case.
The Court must dismiss petitions that contain both exhausted and unexhausted
claims. Rose v. Lundy, 455 U.S. 509, 510 (1982). Thus, when a federal habeas petition
contains claims that are still pending in the state courts, and therefore unexhausted, the
petition must be dismissed in order to provide the state courts with the opportunity to
resolve the pending claims. See Horowitz v. Wainwright, 709 F.2d 1403, 1404 (11th Cir. 1983)
("[t]he principles of comity that form the basis for the exhaustion requirement clearly
would be violated by allowing [Petitioner] to simultaneously pursue [his] appeal in Florida
state court and [his] Section 2254 petition[] in federal court."); Durham v. Wyrick, 545 F.2d
41, 43 (8th Cir. 1976) (claims asserted in a federal habeas petition, which were also pending

before a state court in a motion for postconviction relief, were unexhausted). Having
himself chosen to pursue collateral relief in State court, Petitioner may not now
simultaneously maintain a federal writ, and his request to do so should therefore be
rejected. As a result, the Court concludes that this case should be dismissed in light of the
pending motion for postconviction relief with the state appellate court.
The Court also declines Petitioner’s request to hold these proceedings in abeyance
pending the disposition of his state court proceedings. In Rhines v. Weber, 544 U.S. 269, 277
(2005), the Supreme Court held that "stay and abeyance should be available only in limited
circumstances" in section 2254 habeas actions. Id. at 277. The Court explained that stays
of federal habeas cases frustrate the finality and streamlining purposes of federal habeas
law. Id. Thus, a stay in this context is appropriate only where a petitioner has "good cause"
for his failure to exhaust his claims in state court.

Id.

Here, Petitioner has not

demonstrated good cause.1
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus filed by Michael C. Maguire is

DENIED, and this case is DISMISSED WITHOUT PREJUDICE.

1

The Court notes that the time during which Petitioner’s claims are pending in the
state courts in a properly filed application for collateral review is excluded from the one
year period of limitation under 28 U.S.C. § 2244(d)(2). However, the Court is not making
a determination as to whether any future federal habeas corpus petition filed by Petitioner
will be deemed timely.

2.

The Clerk of the Court is directed to close this case.

DONE AND ORDERED in Chambers at Orlando, Florida, this 14th day of
November, 2011.

Copies to:
OrlP-2 11/14
Michael C. Maguire

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