MCGEE v. JOHNSON et al

Filing 9

MEMORANDUM AND ORDER, Petitioner's request to stay the habeas petition and hold it in abeyance is DENIED WITHOUT PREJUDICE; ORDERED that within 30 days of the date of this Order, Petitioner may submit a renewed request to stay his petition and hold it in abeyance pending exhaustion of his state court remedies, etc. Signed by Judge Renee Marie Bumb on 7/19/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANA L. McGEE,
Petitioner,
v.
STEVEN JOHNSON et al.,
Respondents.

This

matter

comes

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Civ. Action No. 17-2746 (RMB)

MEMORANDUM AND ORDER

before

the

Court

upon

Petitioner’s

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
(Pet.,

ECF

No.

1),

and

his

letter

abeyance. (Letter, ECF No. 5.)

request

for

a

stay

and

Petitioner seeks a stay and

abeyance of his habeas petition while he appeals the denial of
his post-conviction motion for DNA testing.
5.)

(Letter, ECF No.

Respondents’ answer to the petition is due on July 31,

2017, and Respondents have not responded to Petitioner’s request
for a stay.

(Order, ECF No. 7.)

A district court cannot consider a mixed habeas petition, a
petition that contains exhausted and unexhausted claims.

See

Rose v. Lundy, 455 U.S. 509, 510 (1982) (holding a district
court

must

dismiss

a

§

2254

habeas

petition).

Rather

than

dismissing a mixed petition, a district court has discretion to
stay and hold the petition in abeyance while the petitioner

returns

to

state

court

to

exhaust

his

unexhausted

Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

claims.

Before granting a

stay and abeyance, a district court must determine that the
petitioner had good cause for failing to exhaust his claims in
state court prior to bringing his habeas petition, and that his
unexhausted claims are not plainly meritless.
According

to

the

petition,

Id. at 277.

Petitioner’s

became final on January 17, 2011.

direct

(Pet., ¶18.)

appeal

Three days

later, Petitioner filed his first petition for post-conviction
relief.

(Id.)

The denial of Petitioner’s first PCR petition

became final on September 7, 2016, after the Appellate Division
affirmed the PCR Court, and the New Jersey Supreme Court denied
review.
3, 2017.
when

(Id.)

The present habeas petition was filed on April

(Pet., ECF No. 1.)

Petitioner

filed

his

The petition does not indicate
second

post-conviction

motion,

although it does indicate that Petitioner’s appeal from denial
of his motion for post-conviction DNA testing is pending before
the Superior Court of New Jersey, Appellate Division.

(Pet.,

¶15.)
For this Court to grant a request to stay and hold in
abeyance a § 2254 petition, the petitioner must establish good
cause for failing to exhaust his claims in state court prior to
bringing his habeas petition, and that his unexhausted claims
are not plainly meritless.

Rhines v. Weber, 544 U.S. at 277.
2

The record before this Court does not permit such a finding.
Petitioner will be permitted to submit a second request to stay
the petition, wherein he shall provide information on the cause
for his failure to exhaust before filing the habeas petition,
and a brief summary of the merits of his pending PCR claim.
IT IS therefore on this 19th day of July 2017,
ORDERED

that

Petitioner’s

request

to

stay

the

habeas

petition and hold it in abeyance is DENIED WITHOUT PREJUDICE;
and it is further
ORDERED that within 30 days of the date of this Order,
Petitioner may submit a renewed request to stay his petition and
hold

it

in

abeyance

pending

exhaustion

of

his

state

court

remedies; and it is further
ORDERED

that,

within

fourteen

days

of

the

filing

of

Petitioner’s renewed request for a stay, Respondent may, in lieu
of its Answer, file a response to Petitioner’s renewed request
to stay the petition and hold it in abeyance; and it is further
ORDERED that the Clerk shall serve a copy of this Order on
Petitioner by regular U.S. mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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