Byrd v. Dormire

Filing 12

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that petitioner's motion to stay petition and hold it in abeyance [Doc. # 9 ] is denied. IT IS FURTHER ORDERED that petitioner's motion for leave to file amend his petition [Doc. # 10 ] is denied. Signed by Honorable Carol E. Jackson on 09/07/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD BYRD,
Petitioner,
vs.
DAVE DORMIRE,
Respondent.

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Case No. 4:11-CV-1191 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s motion to stay the petition filed
pursuant to 28 U.S.C. § 2254 and hold it in abeyance while he litigates additional
claims for relief in state court. He also seeks leave to file an amended petition to
include additional claims that are not yet exhausted in state court. Petitioner does not
specifically state the additional claims he seeks to exhaust and add to his federal
petition.
The United States Supreme Court held in Rhines v. Weber, 544 U.S. 269, 276
(2005), that a district court has the discretion to stay a § 2254 petition and hold it in
abeyance while a petitioner returns to state court to exhaust previously unexhausted
claims. “Because granting a stay effectively excuses a petitioner’s failure to present
his claims first to the state courts, stay and abeyance 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.” Id. at 277. And, if good cause is shown, “the district
court would abuse its discretion if it were to grant [a petitioner] a stay when his
unexhausted claims are plainly meritless.” Id.

Petitioner offers no explanation for his failure to present his claims in state court
in the first instance; thus, he has not shown good cause. And, because petitioner has
not stated his additional grounds for relief, the Court cannot determine whether they
are plainly meritless. Finally, petitioner cannot be granted leave to amend his petition
to include unexhausted claims.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to stay petition and hold it
in abeyance [Doc. #9] is denied
IT IS FURTHER ORDERED that petitioner’s motion for leave to file amend his
petition [Doc. #10] is denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 7th day of September, 2011.

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