Smith v. Winn

Filing 13

OPINION AND ORDER GRANTING 12 Petitioner's MOTION to Dismiss, DISMISSING without Prejudice the Petition for Writ of Habeas Corpus, and DENYING a Certificate of Appealability. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAHRI SMITH,
Petitioner,
Case No. 15-CV-14260
Hon. Terrence G. Berg

v.
DUNCAN MACLAREN,

Respondent.
____________________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION
TO DISMISS, DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, AND DENYING
A CERTIFICATE OF APPEALABILITY
This is a habeas case brought pursuant to 28 U.S.C. § 2254. This
matter is before the Court on Petitioner’s motion to voluntarily dismiss
his pending petition for a writ of habeas corpus so that he may return to
the state courts and pursue further challenges to his state criminal
proceedings. The Court previously denied Petitioner's motion to stay
the proceedings and hold this case in abeyance. Given that Petitioner
seeks to exhaust additional issues in the state courts and given that he
has sufficient time to do so within the one-year statute of limitations
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applicable to federal habeas actions (with equitable tolling for the time
his habeas case has been pending), dismissal of the present petition is
appropriate.
Accordingly, the Court GRANTS Petitioner’s motion and
DISMISSES WITHOUT PREJUDICE the petition for a writ of
habeas corpus. Additionally, the Court DENIES a certificate of
appealability as reasonable jurists could not debate the correctness of
the Court's procedural ruling. See 28 U.S.C. § 2253(c); Fed. R. App. P.
22(b); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). This case is
CLOSED. Should Petitioner wish to seek federal habeas relief
following the exhaustion of state court remedies, he must file a NEW
habeas petition in federal court within the time remaining on the oneyear period of limitations.
SO ORDERED.

Dated: December 12, 2017

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on December 12, 2017.
s/A. Chubb
Case Manager

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