Meeks v. Cassady
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that no order to show cause shall issue at this time as to respondent, because petitioner did not exhaust available state remedies before invoking federal habeas corpus jurisdiction. IT IS FURTHER ORDER ED that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED, without prejudice, for petitioner's failure to exhaust available state remedies. IT IS FURTHER ORDERED that petitioners request for stay and abeyance [Doc. # 5 , p. 6] is DENIED. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 3/16/2015. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MEMORANDUM AND ORDER
Before the Court is petitioner’s response to the January 27, 2015
Memorandum and Order, instructing him to show cause why this action should not
be dismissed for failing to exhaust available state remedies [Doc. #5]. In the
alternative, petitioner requests an order, staying this case until he has exhausted his
state remedies [Doc. #5, p. 6]. For the following reasons, this action will be
dismissed, without prejudice.
Petitioner, an inmate at the Jefferson City Correctional Center, filed this
action on December 29, 2014, seeking release from confinement pursuant to 28
U.S.C. § 2254. Petitioner stated that he had been sentenced on September 20,
2012, in the St. Louis City Circuit Court, and that his appeal was pending in the
Missouri Court of Appeals for the Eastern District.
On January 27, 2015, petitioner was ordered to show cause why this action
should not be dismissed for failure to exhaust state remedies prior to filing this
action in Federal Court [Doc. #3]. In his show cause response, petitioner states
that he was “deprived of a right to judicial review that is available under postconviction Rule 24.035” when he was denied appointed post-conviction counsel.
Petitioner believes that his circumstance is “unusual and rare” and that he can
demonstrate “cause for the [procedural] default and a fundamental miscarriage of
justice.” In the alternative, petitioner requests a stay and abeyance, stating that he
has good cause for failing to exhaust his claims in state court and that “outright
dismissal could jeopardize the timeliness of [his] attack under the AEDPA.”
Petitioner states that his state criminal appeal is currently pending with the
Missouri Court of Appeals for the Eastern District; however, a review of Missouri
CaseNet does not show a pending appellate action. Rather, CaseNet indicates that
on September 6, 2013, petitioner filed a Rule 24.035 motion for post-conviction
relief in the St. Louis City Circuit Court. Said motion is now pending in state trial
court, not the court of appeals. Regardless of the exact court in which the postconviction challenge is pending, petitioner concedes he has available state
procedures he must exhaust, and the Court finds no exceptional circumstances to
justify dispensing with this requirement.
In the alternative, petitioner asks the Court to stay this action and hold it in
abeyance until he has exhausted his state remedies.
A district court has the
discretion to stay a habeas corpus proceeding only “in limited circumstances.”
Rhines v. Weber, 544 U.S. 268, 277 (2005). The Supreme Court indicated that a
“stay and abeyance” procedure may be employed when the petitioner has filed a
“mixed petition,” i.e., a petition raising both exhausted and unexhausted claims.
Id. In the instant case, however, petitioner cannot utilize the stay and abeyance
procedure, because he did not file a “mixed” habeas petition. All of petitioner’s
claims are unexhausted at this point, as he readily admits that none of the claims
raised in the instant petition have yet been exhausted in state court. Because
petitioner’s habeas application is not “mixed,” stay and abeyance is inappropriate
and petitioner’s request will be denied. See Spires v. Norman, 2012 WL 1605263
at *2 (E.D. Mo. 2012) (stay and abeyance only available in very limited
circumstances where mixed petitions are at issue; petitioner’s request for stay and
abeyance of habeas action denied where application contained only unexhausted
claims and was not a mixed petition); Cowin v. Norman, 2012 WL 424999 at *3
(E.D. Mo. 2012) (habeas petitioner not entitled to stay and abeyance because
claims did not present a mixed petition of exhausted and unexhausted claims). For
these reasons, this action will be dismissed, without prejudice, for petitioner’s
failure to exhaust his available state remedies.
In accordance with the foregoing,
IT IS HEREBY ORDERED that no order to show cause shall issue at this
time as to respondent, because petitioner did not exhaust available state remedies
before invoking federal habeas corpus jurisdiction.
IT IS FURTHER ORDERED that petitioner=s petition for a writ of habeas
corpus pursuant to 28 U.S.C. ' 2254 is DENIED, without prejudice, for
petitioner=s failure to exhaust available state remedies.
IT IS FURTHER ORDERED that petitioner’s request for stay and
abeyance [Doc. #5, p. 6] is DENIED.
A separate Order of Dismissal shall accompany this Memorandum and
Dated this 16th day of March, 2015.
UNITED STATES DISTRICT JUDGE
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