Brown v. Mississippi
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. Defendan'ts Motion to Dismiss is granted 10 and Petitioner's Motion to Transfer is denied 13 . Petitoner's claim is dismissed without prejudice for failure to exhaust available state court remedies. The Court further finds that a Certificate of Appealablility should not issue. Signed by District Judge Carlton W. Reeves on 4/24/17.(TLC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NICHOLAS D. BROWN
CAUSE NO. 3:16-CV-00697-CWR-RHW
SUPERINTENDENT EARNEST LEE;
STATE OF MISSISSIPPI; and SONJA
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court pursuant to the Report and Recommendation of United
States Magistrate Judge Robert H. Walker entered on March 15, 2017. Docket No. 15. Therein,
Judge Walker considered Defendants’ motion to dismiss for failure to exhaust, as well as
petitioner’s motion to transfer the case to state court. Docket Nos. 10 and 13. The Magistrate
Judge, noting that petitioner had already commenced a parallel state court action for postconviction relief, recommended the Court dismiss the present claim without prejudice.
Petitioner objected the Magistrate Judge’s Report and Recommendation. Docket No. 18.
He acknowledged ongoing state court proceedings, and asked this Court to exercise its discretion
to hold his habeas petition in abeyance while he exhausts his claims in state court. A stay and
abeyance, however, “is only appropriate when the district court determines there was good cause
for the petitioner’s failure to exhaust his claims first in state court.” Rhines v. Weber, 544 U.S.
269, 277 (2005). Petitioner failed to make any showing of cause excusing him from first
exhausting his claim in state court.
This Court hereby adopts said Report and Recommendation as the order of this court.
Defendants’ motion to dismiss is granted, Docket No. 10, and petitioner’s motion to transfer,
Docket No. 13, is denied. Petitioner’s claim is dismissed without prejudice for failure to exhaust
available state court remedies. The Court further finds that a Certificate of Appealability should
SO ORDERED, this the 24th day of April, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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