STAGGERS v. POWELL

Filing 17

OPINION & ORDER that 16 Petitioner's motion under Rule 60(b)(6) is DENIED; 13 Respondent's motion to seal the presentence report is GRANTED. Within 30 days of the date of this Order, Petitioner shall 1) advise the Court whether he wish es to voluntarily dismiss this matter; or 2) file a motion to stay and abey this matter until after he exhausts his claims in state court. Because Petitioner has advised that he has filed a mixed petition, the Clerk shall ADMINISTRATIVELY TERMINATE this matter, pending receipt of Petitioner's submissions. Respondent is no longer required to file an Answer in this matter, etc. (Copy of Order sent to Petitioner by reg mail). Signed by Judge John Michael Vazquez on 7/15/21. (jc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARK STAGGERS,
Petitioner,
v.
JOHN POWELL,
Respondent.

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Civil Action No. 20-2289 (JMV)
OPINION & ORDER

Before the Court is Petitioner’s “Cross motion for an order pursuant to Fed. R. Civ. Proc.
60(b)(6) for a premature notice of appeal on the ground that the petitioner failed to first exhaust
remedies prior to filing the Petition.” (D.E. 16.) Petitioner’s reliance on Rule 60(b)(6), the current
posture of the case (pre-judgment), and his request for relief, do not constitute a valid motion under
Rule 60(b)(6). Accordingly, the Court will deny that motion.
As to his underlying request, it appears that Petitioner wishes to voluntarily dismiss this
case without prejudice to refiling, after he completes his state post-conviction relief (“PCR”)
proceedings. Petitioner appears to recognize that he has not yet exhausted some of his claims and
that that this Court cannot adjudicate a mixed petition, i.e., one that contains both exhausted and
unexhausted claims. The Court cautions Petitioner that a voluntary dismissal will not toll the oneyear limitations period under the Antiterrorism and Effective Death Penalty Act, to file a § 2254
petition.
Alternatively, Petitioner may be seeking a stay of this matter while he exhausts his claims
in state court. To merit a stay, Petitioner must establish: (1) that he has good cause for his failure
to raise the additional claims before; (2) that the additional claims have factual and legal merit;

and (3) that he is not engaging in intentional dilatory litigation tactics. Rhines v. Weber, 544 U.S.
269, 277–78 (2005).
If Petitioner wishes to pursue a stay, he must file a formal motion to stay, along with a brief
that explains the specifics of his unexhausted claims. In particular, Petitioner’s submission must
include any facts relevant to support those claims. Additionally, if Petitioner has already filed his
post-conviction relief petition in state court, he shall submit a copy of that petition along with his
motion. Accordingly,
IT IS, on this 15th day of July 2021,
ORDERED that Petitioner’s motion under Rule 60(b)(6), (D.E. 16), is DENIED; and it is
further
ORDERED that Respondent’s motion to seal the presentence report, (D.E. 13.), is
GRANTED; and it is further
ORDERED that within thirty (30) days of the date of this Order, Petitioner shall: (1) advise
the Court whether he wishes to voluntarily dismiss this matter; or (2) file a motion to stay and abey
this matter until after he exhausts his claims in state court; and it is further
ORDERED that because Petitioner has advised that he has filed a mixed petition, the Clerk
of the Court shall ADMINISTRATIVELY TERMINATE this matter, pending receipt of
Petitioner’s submissions; and it is further
ORDERED that Respondent is no longer required to file an Answer in this matter; and it
is further

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ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular U.S.
mail.

___________________________
JOHN MICHAEL VAZQUEZ
United States District Judge

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