Taylor v. Sachse

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to refiling once petitioner has exhausted his state remedies. A separate Order of Dismissal will be filed forthwith.. Signed by District Judge Rodney W. Sippel on 11/19/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD V. TAYLOR,
Petitioner,
v.
JENNIFER SACHSE,
Respondent.

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No. 4:13CV1938 SPM

MEMORANDUM AND ORDER
Before the Court is petitioner’s response to the Court’s Order directing him to
show cause why this action should not be summarily dismissed for failure to exhaust
state remedies. Petitioner acknowledges that this action is premature, but he requests
a stay of the proceedings while he pursues state postconviction proceedings. After
careful review, the Court has determined that a stay is not warranted, and the Court
will dismiss this action without prejudice to refiling once petitioner’s state
postconviction proceedings are final.
The AEDPA requires that a state prisoner who files a § 2254 petition must have
exhausted available state court remedies with respect to every claim raised in the
federal petition, i.e., on direct appeal and state habeas corpus review. 28 U.S.C.
§ 2254(b)(1). Filing a federal petition with both exhausted claims and unexhausted
claims (called a “mixed petition”) ordinarily will result in dismissal of the entire

petition without prejudice, unless the petitioner chooses to delete the unexhausted
claims from the petition or unless the federal court proceeds to deny the unexhausted
claims on the merits. Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C.
§ 2254(b)(2). The Supreme Court has held, however, that federal district courts have
limited discretion to hold mixed petitions in abeyance in order to permit a habeas
corpus petitioner to return to state court to complete exhaustion of all his claims.
Rhines v. Weber, 544 U.S. 269 (2005).
The instant petition does not fall under the limited exception to exhaustion in
Rhines because it is not a “mixed petition.” That is, plaintiff has not exhausted any
of the claims in his petition because his state postconviction proceedings are still
pending. As a result, the Court does not have discretion to stay this case.
Petitioner is concerned that he will not be able to afford the filing fee if he has
to file a new case. If petitioner cannot afford the filing fee, he may proceed in forma
pauperis, and the filing fee will be waived. Petitioner is not prejudiced by the
dismissal of this action.
Finally, petitioner has failed to demonstrate that jurists of reason would find
it debatable whether he has exhausted available state remedies. Thus, the Court will
not issue a certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
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IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in
forma pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED without
prejudice to refiling once petitioner has exhausted his state remedies.
A separate Order of Dismissal will be filed forthwith.
Dated this 19th day of November, 2013.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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