Howell v. Fisher et al

Filing 36

ORDER granting 32 Motion to Stay. Signed by District Judge Debra M. Brown on 1/27/16. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MARLON HOWELL
V.

PETITIONER
NO. 3:15CV105-DMB

MARSHALL FISHER and
JIM HOOD

RESPONDENTS

ORDER GRANTING RESPONDENTS= MOTION
TO STAY FEDERAL HABEAS PROCEEDINGS
Respondents have filed a motion seeking to stay this federal habeas action pending the
outcome of Petitioner’s successive state post-conviction petition 1 filed with the Mississippi
Supreme Court on July 29, 2015, on the basis of newly discovered evidence.

Doc. #32.

Petitioner does not oppose the motion to stay this federal proceeding. See Doc. #33.
Claim II of Petitioner’s pending state-court petition raises the following issue:
Whether the due process clause of the Fourteenth Amendment to the United States
Constitution requires a new trial when newly-discovered alibi witnesses swear that
the accused was not present at the time of the murder, and where the State’s case even before discovery of the alibi witnesses - was suspect for many reasons,
including the fact that key witnesses have made inconsistent statements and
recantations concerning whether or not Howell was present at the murder scene.
Doc. #32 at 2; Doc. #32-1 at 7. Claim II of Petitioner’s state court petition is essentially the same
actual innocence claim raised in Ground I of Petitioner’s habeas petition. Compare Doc. #32-1at
7 with Doc. #13 at 12-20, 22-30. Therefore, the federal habeas petition filed in this case contains
an unexhausted claim that is also included in a pending state-court proceeding.
The resolution of Petitioner’s state court action will impact his federal habeas proceedings.
The Court determines that simultaneous litigation of the above issue in both state and federal court
1

Based on one of the exhibits filed in support of the instant motion, Respondent’s state court petition is
styled, “Motion to Order New Trial Based on Newly-Discovered Evidence; Alternatively, Motion for
Leave to File Petition for Post-Conviction Relief Based on Newly-Discovered Evidence.” See Doc. #32-1.

would be a waste of time and resources, as neither the Court nor the parties can predict whether the
state court action will be dismissed or heard on its merits. The Court finds therefore that
Petitioner=s federal habeas proceedings should be stayed pending the resolution of the issue in state
court. See, e.g., Rhines v. Weber, 544 U.S. 269, 277 (2005) (stay only appropriate if court
determines petitioner has shown good cause for his failure to exhaust potentially meritorious claim
in state court, and finds he has not deliberately engaged in dilatory litigation tactics).
Accordingly, Respondents’ “Motion to Stay and Abate Pending Resolution of
Unexhausted State Court Claim Based on Newly Discovered Evidence” [32] is GRANTED.
This case is STAYED pending the resolution of Petitioner=s state court proceedings. In light of
the Court’s decision to stay these federal habeas proceedings, Respondents’ motion [34] for
additional time within which to file an answer is DISMISSED AS MOOT. Petitioner is
ORDERED to notify the Court within thirty (30) days of a final adjudication of his request to file
a successive post-conviction petition.
SO ORDERED, this 27th day of January, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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