Markey v. Superintendent

Filing 2

OPINION AND ORDER granting request in petition to stay the proceedings in this petition and directs petitioner to advise Court when he has completed state court review of his unexhausted claims. Signed by Judge Rudy Lozano on 10/20/2011. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BERNARD MARKEY,
Petitioner
v.
SUPERINTENDENT, MIAMI
CORRECTIONAL FACILITY,
Respondent.

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No. 3:11cv398

OPINION AND ORDER
This matter is before the Court on the request that this
proceeding be stayed, contained Bernard Markey’s Pro Se Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
Sate Custody. Upon due consideration, the request is GRANTED. The
Court STAYS the proceedings in this petition for writ of habeas
corpus and DIRECTS Petitioner to advise the Court when he has
completed state court review of his unexhausted claims.
Petitioner

Bernard

Markey,

a

prisoner

confined

at

the

Westville Correctional Facility, filed this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging convictions
in the Marion Superior Court for dealing in cocaine and possession
of cocaine.
“[F]ederal district courts may not adjudicate mixed petitions
for habeas corpus, that is, petitions containing both exhausted and
unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005).
After reviewing the petition, the Court finds that it is a “mixed
petition” containing both exhausted and unexhausted claims, see
Rose v. Lundy, 455 U.S. 509 (1982); see also Zarvela v. Artuz, 254

F.3d 374, 377 (2d Cir.). Therefore this Court cannot now address
the claims in this petition.
would

prevent

federal

However, if dismissal of a petition

habeas

review,

then

a

stay

may

be

appropriate. Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).
Markey recognizes his mixed petition problem. He states that
his previous counsel informed him that “[m]y deadline for my one
(1) year window is October 5, 2011),”1 and he states that “I am
also requesting from this court a ‘Motion to Stay’” (DE 1 at 6).
Under Rhines, the Court has discretion to stay rather than dismiss
a petition in circumstances where a dismissal “would effectively
end any chance at federal habeas review.” Dolis v. Chambers, 454
F.3d 721, 725 (7th Cir. 2006). The Court should consider whether a
stay is appropriate even in the absence of a request from the
petitioner. Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008).
Having

reviewed

the

Petitioner’s

submissions,

the

Court

concludes that a dismissal might well prevent him from ever being
able to file a petition for writ of habeas corpus.

Accordingly,

the interests of justice are best served by staying this case until
the Petitioner has completed state court review of his unexhausted
claims.
For the foregoing reasons, the Court STAYS the proceedings in
this petition for writ of habeas corpus until the Petitioner has
completed

state

court

review

of

1

his

unexhausted

claims.

The

Markey placed his petition in the prison mailing system on October 3,
2011, (DE 1 at 6) and, pursuant to the mailbox rule, it is deemed filed on
that date. See Houston v. Lack, 487 U.S. 266 (1988).

2

Petitioner is DIRECTED to advise the Court when he has completed
state court review of his unexhausted claims.

DATED: October 20, 2011

/S/RUDY LOZANO, Judge
United States District Court

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