PATRICK v. WARDEN, NEW JERSEY STATE PRISON et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Susan D. Wigenton on 5/22/2023. (dam)

Case 2:22-cv-01883-SDW Document 18 Filed 05/22/23 Page 1 of 2 PageID: 3120

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIP S. PATRICK,

Civil Action No. 22-1883 (SDW)

Petitioner,

MEMORANDUM OPINION

v.
WARDEN, NEW JERSEY STATE
PRISON, et al.,
Defendants.

IT APPEARING THAT:
1. On or about April 3, 2022, Petitioner Philip S. Patrick, filed a counseled petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction and
sentence in the New Jersey Superior Court, Law Division, Union County. (ECF No. 1).
Petitioner thereafter filed a corrected, counseled petition. (ECF No. 7).
2. Respondents filed an answer to the corrected petition on August 25, 2022. (ECF No.
15). In that answer, Respondents raised the affirmative defense that ground three of the petition
is unexhausted because it was not fairly presented to the state courts. (Id. at 30-35). Petitioner
filed a reply brief. (ECF No. 16).
3. On April 11, 2023, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), this Court
directed Petitioner to show cause, within 30 days, as to why his corrected, counseled habeas
petition should not be dismissed without prejudice because it contains an unexhausted claim.
Petitioner was given the opportunity to withdraw the unexhausted claim or seek a stay and
abeyance of his petition, while he exhausts this claim in the state courts, but he failed to respond.

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Case 2:22-cv-01883-SDW Document 18 Filed 05/22/23 Page 2 of 2 PageID: 3121

Therefore, this Court will dismiss the petition without prejudice, as a mixed habeas petition
containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982).

An appropriate Order follows.

May 22 2023
DATE: ____________,
______________________
Hon. Susan D. Wigenton,
United States District Judge

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