Santiago-Robles v. Attorney General, State of Florida et al
ORDER denying 23 motion to stay. Signed by Judge Roy B. Dalton, Jr. on 6/7/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:15-cv-943-Orl-37DAB
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE
This cause before the Court on Petitioner’s Motion for Protective Federal Petition
Along With Stay and Abeyance of Pending Habeas Corpus (“Motion,” Doc. 23).
Petitioner has filed an Amended Petition for Writ of Habeas Corpus (“Amended
Petition,” Doc. 7) pursuant to 28 U.S.C. § 2254. However, Petitioner acknowledges in
the Motion that he currently has pending in the state appellate court an appeal of the
denial of his motion for postconviction relief, which concerns the judgment and sentence
under attack in this case. (Doc. 23 at 1).
The Court must dismiss petitions that contain both exhausted and unexhausted
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 petition for writ of
habeas corpus. As a result, Petitioner will be required to show cause why this case
should not be dismissed in light of the pending appeal with the state appellate court. 1
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. 2
Further, the pending state proceeding might result in the reversal of Petitioner's
conviction and eliminate the federal question, thereby rendering any decision by this
Court moot and wasting precious judicial resources. There is no indication that
excessive delay has violated his right to due process or rendered state process
ineffective, and Petitioner has not shown that existing circumstances render his
available state remedies ineffective to protect his rights.
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
Accordingly, it is hereby ORDERED as follows:
Petitioner’s Motion for Protective Federal Petition Along With Stay and
Abeyance of Pending Habeas Corpus (“Motion,” Doc. 23) is DENIED.
Petitioner shall show cause within ten (10) why this case should not be
dismissed in light of the pending appeal in the state appellate court. The failure to
comply will result in the dismissal of this case without further notice.
DONE and ORDERED in Orlando, Florida on June 7th, 2016.
Copies furnished to:
Counsel of Record
making a determination as to whether any future federal habeas corpus petition filed by
Petitioner will be deemed timely.
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