Mack v. Epps

Filing 19

ORDER denying 11 Motion to Dismiss; adopting 18 Report and Recommendations. The Report and Recommendation of Magistrate Judge F. Keith Ball, as modified, is hereby adopted as the opinion of this Court. Respondent Rick McCarty's Motion to Dismiss for Failure to Exhaust is denied. This case is stayed pending Mack's exhaustion of his state-court remedies. Mack is hereby required to file his second post-conviction relief application in the Mississippi Supreme Court within thirty ( 30) days of this Order. Moreover, Mack must file a motion to dissolve this stay within thirty (30) days of the final resolution of his habeas claims by the Mississippi state courts. Signed by District Judge Daniel P. Jordan III on June 24, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES LEE MACK

PETITIONER

v.

CIVIL ACTION NO. 3:14cv814-DPJ-FKB

RICK MCCARTY, Interim Commissioner of MDOC

RESPONDENT

ORDER
This habeas corpus petition is before the Court on the Report and Recommendation [18]
of Magistrate Judge F. Keith Ball. In his Report, Judge Ball recommends that the Court stay this
case so that Petitioner James Lee Mack can exhaust his state-court remedies. Neither party has
filed objections to the Report.
The Court agrees that Mack’s situation is one where a stay is appropriate, and a stay of
this action is accordingly entered. However, the Court finds that in order to satisfy “AEDPA’s
goal of finality,” Rhines v. Weber, 544 U.S. 269, 278 (2005), Mack should be required to file his
second post-conviction relief application in the Mississippi Supreme Court within thirty (30)
days of this Order. Moreover, Mack should file a motion to dissolve this stay within thirty (30)
days of the final resolution of his habeas claims by the Mississippi state courts. See Rhines, 544
U.S. at 278 (“[District courts] should explicitly condition the stay on the prisoner’s pursuing state
court remedies within a brief interval, normally 30 days, after the stay is entered and returning to
federal court within a similarly brief interval, normally 30 days after state court exhaustion is
completed.” (alteration in original) (internal quotation marks omitted)). Failure to comply with
these deadlines will result in the dismissal of this action, which will likely foreclose federal
habeas relief.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendation [18] of Magistrate Judge F. Keith Ball, as modified, is hereby adopted as the
opinion of this Court.
IT IS FURTHER ORDERED that Respondent Rick McCarty’s Motion to Dismiss for
Failure to Exhaust [11] is denied.
IT IS FURTHER ORDERED that this case is stayed pending Mack’s exhaustion of his
state-court remedies. Mack is hereby required to file his second post-conviction relief
application in the Mississippi Supreme Court within thirty (30) days of this Order. Moreover,
Mack must file a motion to dissolve this stay within thirty (30) days of the final resolution of his
habeas claims by the Mississippi state courts.
SO ORDERED AND ADJUDGED this the 24th day of June, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

2