Hurst v. Madison Correctional Institution
Filing
28
OPINION AND ORDER FOR PETITIONER TO RESPOND: Hurst shall, within thirty (30) days, inform the Court whether he wishes to: (1) abandon his claim of ineffective assistance of appellate counsel or (2) maintain this claim and attempt to exhaust it in state court. Signed by Senior Judge Peter C Economus on 6/6/11. (jr1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK HURST,
Case No. 2:09CV1042
Petitioner,
JUDGE PETER C. ECONOMUS
v.
WARDEN, MADISON
CORRECTIONAL INSTITUTION,
OPINION AND ORDER FOR PETITIONER
TO RESPOND
Respondent.
This matter is before the Court for consideration of Petitioner Mark Hurst’s (“Hurst”)
Petition for Writ of Habeas Corpus brought under 28 U.S.C § 2254 (“Petition”). (Dkt. # 3.)
Also before the Court is Respondent Warden of the Madison Correctional Institution’s
(“Warden”) Return of Writ (Dkt. # 13) and Hurst’s Reply (Dkt. #14). For the reasons that
follow, Hurst shall respond as directed in section VI of this Order.
I. PROCEDURAL BACKGROUND
In September of 2007, a Licking County Grand Jury indicted Hurst for: (1) pandering
obscenity involving a minor as defined by Ohio Revised Code § 2907.321(A)(5), (2) pandering
sexually oriented matter involving a minor as defined by Ohio Revised Code § 2907.322(A)(5),
and (3) illegal use of a minor in nudity-oriented material or performance as defined by Ohio
Revised Code § 2907.323(A)(3).
(Dkt. # 13-5 at 1-3).
Hurst pleaded not guilty at his
arraignment. (Dkt. # 13-5 at 1-3). On August 6, 2008, a jury found him guilty of all three
charges and the Licking County Common Pleas Court sentenced him to a total of three years and
three months incarceration. (Dkt. # 13-5 at 5-9.)
On August 14, 2008, Hurst filed a timely notice of appeal raising the following two
assignments of error before the Ohio Court of Appeals, Fifth District (“state appeals court”):
(1) Appellant’s conviction for illegal use of a minor in nudity-oriented material
was void as a matter of law for failing to state a culpable mental state (reflected in
indictment).
(2) Appellant’s conviction was not supported by sufficient evidence and/or was
against the manifest weight of the evidence (reflected in trial transcript).
(Dkt. # 13-5 at 12, 15).
The state appeals court denied both of Hurst’s assignments of error and affirmed the
judgment of the trial court on March 6, 2009. (Dkt. # 13-5 at 69-93.) On June 16, 2009, Hurst,
pro se, filed a notice of appeal and a motion for delayed appeal in the Supreme Court of Ohio.
(Dkt. # 13-6 at 24-27.) On July 29, 2009, the Supreme Court of Ohio denied the motion for
delayed appeal. (Dkt. # 13-6 at 55.) On October 25, 2009, Hurst filed the instant Petition. 1
(Dkt. # 3.)
II. FACTUAL BACKGROUND
The Court must presume correct the facts found by the state appeals court on its review of
the record. 28 U.S.C. § 2254(e)(1); Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001)
(“. . . the findings of fact made by a state court are presumed correct and can only be contravened
where the habeas petitioner can show by clear and convincing evidence that the state court's
factual findings were erroneous.”). In its March 6, 2009 Order, the state appeals court made the
following findings of fact:
(¶2) Appellant worked for Robertson Construction Company in Licking County
during the month of April 2007. Appellant was a field employee and had been
injured on the job. Accordingly, appellant was placed on light duty and assigned
to work in the office during that month.
1
Hurst has also filed five motions for judicial release in the Licking County Court of Common Pleas. Four of those
motions have been denied and one remains pending. (Dkt. # 13-5 at 94-98; Dkt. # 13-6 at 1-23, 56-69.)
2
(¶3) On April 25, 2007, Theresa Ruby, appellant’s direct supervisor claimed to
have witnessed appellant viewing pornography on a newly added computer
station. She testified that she found appellant “in the other office.” When Ms.
Ruby walked behind appellant, she testified that she believed she saw he was
looking at “pictures of naked women.”
(¶4) Christian Robertson, of Robertson Construction contacted their outside
computer Information Technology [“IT”] person, Richard Day, and the police.
Mr. Day testified that the computer appellant had been using was installed at
Robertson Construction approximately one week prior to this incident. Mr. Day
looked at the computer’s hard disk drive, the “C” drive, in an attempt to discover
whether anyone was downloading anything that he or she should not have been.
His investigation did not find any physical evidence of inappropriately
downloaded material, or unauthorized folders created by someone using that
computer workstation. However, when Mr. Day looked in the “temporary internet
files” folder contained on the computer’s hard disk drive, he found over 20,000
pictures. Upon opening and viewing several of the pictures, Mr. Day realized they
were pornographic photographs. Mr. Day “locked down” the computer and
suggested to Christian Robertson that he contact the police. Later that afternoon,
Officer Brandy Huffman arrived at the scene to collect the computer. At her
request, Mr. Day made two copies of the photographs found on the computer’s
hard drive to a CD-Rom to be used as evidence by the police.
(¶5) Diamond Boggs, a forensic computer expert with the Bureau of Criminal
Identification and Investigation, testified that she had specific training related to
detecting “virtual” children. She used this training while looking at the computer
pictures at issue in the instant case. Ms. Boggs testified that the computer’s hard
drive contained approximately 14,000 photographs, which had been accessed
April 20 through April 25, 2007. Ms. Boggs further testified that she found
pictures that she believed to be child pornography, adult pornography and some
that she could not discern whether or not it depicted adults or children. She
testified that in her expert opinion virtual photographs of children are
distinguishable from real children. She further testified that she did not find any
indication that the photographs at issue were virtual, as opposed to real, children.
In fact, despite her training in the area of detecting photographs of virtual children
she testified that there was “nothing that tells me that they are not real children.”
Ms. Boggs explained that the person who had used the computer involved
manually typed terms into the search engine in order to search for websites
associated with child pornography. In fact, one such search the individual made a
typographical error by initially typing tinyteenthungs.info, only to have to correct
it. Ms. Boggs characterized the individual’s access to these types of web pages as
“[n]ot an accidental viewing of child pornography.” Fifty pictures from the over
14,000 pictures found on the computers hard drive were selected by Ms. Boggs as
possible child pornography. All of the 52 images were found in the computer’s
temporary internet cache folder. Those pictures were admitted into evidence at
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appellant’s jury trial. 2
(¶6) Appellant was interviewed by the police and confessed that he had used the
computer to view pornography. He admitted that seventy percent of the time that
he had spent on the computer while at work he was viewing pornographic web
sites. He also testified the he had “very -- almost embarrassing computer skills …
I would have to have some basic computer skills” Appellant claimed that his coworkers told him “‘Just get on it and play with it. Just get on it and play with it. It
will come to you.” Appellant testified that he “wasn’t aware of what a site was at
the time. I would just click on an image and another page could come up.”
Appellant did not know any of the web page addresses. However, appellant
testified that his wife caught him viewing pornographic web sites on his home
computer approximately eight years ago.
(¶7) Appellant testified that he did not know any of the web page addresses.
Appellant also testified that the pages he visited would have “[pictures in an array
arranged] 10 by 10 which would be 100 per page per screen” and that he did not
look at all of the pictures on every screen. Appellant testified that three times
“[web] pages would start to come up so fast and overlap that I couldn’t stop them,
so I would go up to the corner where the little x is and I would keep clicking on it,
and it didn’t stop it at all, so I crawled under the desk to unplug it [the
computer].” Appellant further testified “hundreds and hundreds if not thousands
and thousands” of websites or pages came up and he did not see the content of
any of these pages. At trial, appellant specifically denied seeing any nude children
or children engaged in sexual acts on the computer. Finally, appellant testified,
“somehow child pornography ended up on that computer. I don’t know how it got
there and obviously other people don’t know how it got there either”
[¶8] In his interview with the police, appellant described his affinity to
pornography by adding the caveat that:
[¶9] “It …it’s never been to a point of touching a kid or any kid that I see, you,
you know. There’s no attraction or any, you know, uh-young lady. Um … always
been, you know … viewing pictures. … I am more a viewing thing, than an actual
physical thing, you know.” 3
(Dkt. # 13-5 at 70-73.)
III. STANDARD OF REVIEW
A petition for a writ of habeas corpus may only be granted when: (1) the state court’s
2
Ms. Boggs explained that there were actually fifty-two pictures; however, two of the photographs were duplicates.
(2T. at 127-128).
3
State’s Exhibit 8-A (Transcript), at 6; and State’s Exhibit 8-A (Transcript) at 6; and State’s Exhibit 8-B (CDROM). See also, 2T. at 301.
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adjudication of an issue was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or (2) the
state court’s decision “was based on an unreasonable determination of the facts in light of the
evidence presented” in the state court proceedings. 28 U.S.C. § 2254(d).
IV. LAW AND ANALYSIS
In his Petition, Hurst sets forth the following nine grounds for relief:
GROUND ONE: Petitioner’s conviction for illegal use of a minor in nudity
oriented material was void as a matter of law for failing to state a culpable mental
state. Supporting Facts: The mens rea of “recklessly” was not written into the
indictment. Therefore it should not have been given in directions to the jury. See
memorandum in support attached.
GROUND TWO: Petitioner’s conviction was not supported by sufficient
evidence and/or was against the manifest weight of the evidence. Supporting
Facts: Digital images found in office computer were not authenticated, looked at,
or tested by a digital imagery expert. No proof that images were of real children.
See memorandum in support, attached. Asking a jury to determine if images were
of real children was unfair to petitioner and against his constitutional rights to a
fair trial.
GROUND THREE: Petitioner’s conviction was not supported by sufficient
evidence and/or was against the manifest weight of the evidence. Supporting
Facts: All 52 images of child pornography were found in the temporary internet
cache file with no evidence interaction by anyone. See memorandum in support,
attached. The cache files had over 20,000 images in the file, showing the 52
images could have gotten in the file without petitioner seeing, knowing or
soliciting. Petitioner will prove this to be true, the testimony of State’s witnesses
and State’s evidence.
GROUND FOUR: Petitioner’s constitutional rights were violated when petitioner
did not receive a fair trial when prosecutor withheld evidence from defense.
Supporting Facts: Richard Day testified that he gave Officer Huffman two CD’s
of internet history. Ms. Boggs testified that she gave Prosecutor a CD with entire
internet history. That’s 3 CD’s of internet history. Only one CD of over 20,000
images of pornography were given to the defense team. Two CD’s of internet
history were not made available. See trial transcript and memorandum in support,
attached.
GROUND FIVE: Petitioner’s constitutional rights were violated when appellant
did not receive a fair trial when government witnesses gave false testimony.
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Supporting Facts: Petitioner can prove with State’s witnesses’ testimony and
State’s evidence that Teresa Ruby gave false testimony when she stated she used
her pass-word to sign on to said computer. In fact she used the same password
petitioner used to access computer.
GROUND SIX: Petitioner did not receive a fair trial when government evidence
was unreliable and flawed. Supporting Facts: States witnesses gave decidedly
different testimony on how long computer was in use. Teresa Ruby, Richard Day
and Heather Young testified that the computer was new (only two weeks old).
States forensic specialist testified that said computer was in use for over 7 months.
There are many ways that information can be transferred from computer to
computer when they are connected to an office network, which this computer was.
See memorandum in support, attached.
GROUND SEVEN: Petitioner’s constitutional rights to a fair trial were denied,
when the prosecution altered evidence to prejudice the jury. Supporting Facts:
Prosecutor or the State enlarged the images, greatly improving the resolution (in
exhibit 1) the images petitioner was charged with Teresa Ruby, Ms. Boggs and
petitioner all testified that images that they saw on computer were thumbnail
pictures, and hard to see. States forensic specialist Ms. Boggs testified that the
images in exhibit 1, (the half page size) were not the size that she saw when
looking at the evidence. See memorandum in support that is attached. Petitioner
will prove these statements with State witness testimony and State’s exhibits.
GROUND EIGHT: Petitioner’s constitutional rights were denied when he did not
receive a fair trial because all evidence was tampered with and handled by
persons not in authority or with training. Supporting Facts: The computer in
question was handled and accessed no less than 6 times after petitioner last used
it. Two times using the same password petitioner used. State’s forensic system
specialist Ms. Boggs testified how easily electronic evidence is altered and that it
is important to leave computer examinations to the experts. Ms. Boggs testified
that she would have been very concerned had she known that the computer in
question had been turned on while still hooked up to the internet. Petitioner will
prove all these statements in memorandum in support with State’s witness
testimony and State’s exhibits. See memorandum in support, attached.
GROUND NINE: Petitioner’s rights were violated when he did not receive a fair
trial due to improperly handled and gathered evidence. Supporting Facts:
Petitioner will prove that computer was accessed over 6 times after he last used it
and it was still hooked up to the internet. Mr. Boggs testified that every time you
turn on a computer you “make changes to access times.” Ms. Boggs testified that
every time you turn on a computer you “make changes to access times.” Ms.
Boggs testified, stating that it would have been a concern to her had she know that
an officer, or lay person had searched or investigated said computer. In essence,
every time someone accessed said computer to investigate, all data was altered,
especially when two CD discs were made by a Robertson Construction Company.
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(Dkt. # 3.)
A. Grounds One, Two, and Three.
The Warden argues that Hurst has waived his first, second, and third grounds for relief
due to procedural default because Hurst failed to file a timely appeal in the Supreme Court of
Ohio. The Warden also argues that Hurst has procedurally defaulted his first ground for relief by
failing to raise a contemporaneous objection at trial.
1. Timely appeal
It is well-established that, on federal habeas corpus review, a district court may be barred
from considering an issue of federal law from a judgment of a state court if the state judgment
rests on a state-law ground that is both “independent” of the merits of the federal claim and an
“adequate” basis for the state court’s decision. Harris v. Reed, 489 U.S. 255, 260-62 (1989).
The Sixth Circuit has held that a Supreme Court of Ohio entry denying a prisoner’s motion for
leave to file a delayed appeal constitutes a procedural ruling sufficient to bar federal court review
of that prisoner’s habeas corpus petition. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).
This rule applies even when the entry is unexplained. Id. (citing Simpson v. Sparkman, 94 F.3d
199, 203 (6th Cir. 1996)).
When a state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, a district court may only review the claims if the
prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law or if he can demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).
“Since both cause and prejudice must be shown to excuse a procedural default, the failure to
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establish cause eliminates the need to consider prejudice.” Bonilla, 370 F.3d at 497 (citing
Murray v. Carrier, 477 U.S. 478, 494-95 (1986)).
To establish cause, a petitioner must show that “some objective factor external to the
defense” prevented his compliance with the state procedural rule. Id. at 498 (quoting Carrier,
477 U.S. at 488). To demonstrate the potential for a miscarriage of justice, a petitioner must
show that a constitutional violation probably resulted in the conviction of one who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). To do so, “the petitioner must show that it
is more likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” Id.
In the instant case, Hurst failed to file a timely appeal in the Supreme Court of Ohio.
Although he attempted to file a delayed appeal, the Supreme Court denied his motion.
Therefore, in order to maintain Grounds One, Two, and Three, Hurst must demonstrate cause for
the default and prejudice or a potential fundamental miscarriage of justice. Hurst has provided
the following explanations for his default in his motion for delayed appeal and the Petition: he
lacked the assistance of counsel and “the experience to adequately present and prepare his
cause,” he had limited library access, he had no help, he was unaware of the time limits, and the
Supreme Court of Ohio returned his filings rather than accepting them. (Dkt. # 3 at 3; Dkt. # 136 at 27.)
“[T]he right to appointed counsel extends to the first appeal of right, and no further.”
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The right does not extend to discretionary
appeals or collateral post-conviction proceedings.
Id.
In addition, the Sixth Circuit has
repeatedly held that lack of access to resources or research materials is insufficient to serve as
cause in a habeas case. Bonilla, 370 F.3d at 498; Abshear v. Moore, 2009 U.S. App. LEXIS
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26543, at *20 (6th Cir. Dec. 3, 2009).
Moreover, “ignorance of the law and procedural
requirements for filing a timely notice of appeal is insufficient to establish cause to excuse . . .
procedural default.” Bonilla, 370 F.3d at 498. Finally, Hurst has provided no support for his
allegations that Supreme Court of Ohio employees are responsible for his failure to file a timely
appeal when Hurst clearly failed to comply with that court’s rules.
Since none of Hurst’s arguments demonstrate cause to excuse his procedural default, and
as Hurst has not presented evidence sufficient to establish actual innocence 4, the Court finds that
Grounds One, Two, and Three are waived.
2. Failure to object
The Warden next argues that Hurst has further defaulted Ground One by failing to raise a
contemporaneous objection at trial to the error alleged in that claim. Ground one alleges that
Hurst’s “conviction for illegal use of a minor in nudity oriented material was void as a matter of
law for failing to state a culpable mental state.” Specifically, Hurst contends that “recklessly”
was not written into the indictment and should, therefore, not have been given in his jury
instructions at trial.
“Ohio’s contemporaneous objection rule constitutes an adequate and independent state
ground that bars federal habeas review absent a showing of cause and prejudice.” Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir. 2001); see also United States v. Frady, 456 U.S. 152, 167-68
(1982) (“. . . to obtain collateral relief based on trial errors to which no contemporaneous
objection was made, a convicted defendant must show both (1) cause excusing his procedural
default, and (2) actual prejudice resulting from the errors of which he complains.”)
4
Hurst’s Motion for Leave to Supplement is hereby GRANTED. (Dkt. # 25.) However, the Court finds that the
two cases cited in Hurst’s Motion for Leave to Supplement are distinguishable from the instant case. Both United
States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011) and United States v Flyer, 2011 U.S. App. LEXIS 2362 (9th Cir.
Feb. 8, 2011) interpret a federal pornography statute and not the Ohio statute under which Hurst was convicted.
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The state appeals court held that Hurst did not object to the indictment or the trial court’s
jury instructions. (Dkt. # 13-5 at 78). Since Hurst has failed to provide any basis to excuse this
particular procedural default, and he has not established actual innocence, he has waived his first
ground for relief.
B. Grounds Four Through Nine.
1. Procedural default
The Warden argues that Hurst has procedurally defaulted Grounds Four through Nine by
failing to present them to the Ohio courts. In these grounds, Hurst alleges that he did not receive
a fair trial because: (1) the government withheld evidence, (2) government witnesses provided
false testimony, (3) the evidence introduced by the government at trial was unreliable and
flawed, (4) the evidence was altered, and (5) the evidence was tampered with and handled by
persons without authority or training.
In his Petition, Hurst concedes that he did not present Grounds Four through Nine on
direct appeal. (Dkt. # 3 at 12.) He would now be barred from raising them in state court by
Ohio’s rule of res judicata. See State v. Cole, 2 Ohio St.3d 112, 113-14 (1982); State v. Ishmail,
67 Ohio St.2d 16, 18 (1981). Therefore, Grounds Four through Nine are procedurally defaulted
and may not be raised as grounds for federal habeas relief unless Hurst can show cause to excuse
his failure to raise the claims in state court. Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994).
2. Cause/exhaustion
Hurst asserts that his failure to present Grounds Four through Nine to the Ohio courts was
a result of his appellate counsel’s constitutionally ineffective assistance. While counsel’s neglect
may serve as cause to excuse procedural default, a claim of ineffective assistance of counsel can
itself be procedurally defaulted and must be properly exhausted in state court. See Edwards v.
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Carpenter, 529 U.S. 446, 453 (2000); Carrier, 477 U.S. at 489 (“. . . the exhaustion doctrine . . .
generally requires that a claim of ineffective assistance be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.” ).
A state prisoner must exhaust his state remedies by fairly presenting federal claims to the
state courts before seeking federal habeas corpus relief on such claims. Whiting v. Burt, 395
F.3d 602, 612-13 (6th Cir. 2005). In other words, “a habeas petitioner must give the state courts
the first opportunity to consider and rule upon the federal claims the prisoner wishes to use to
attack his state court conviction.” Picard v. Connor, 404 U.S. 270, 275 (1971); O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[A]state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.”)). Therefore, the Court cannot consider Hurst’s claim of
ineffective assistance of appellate counsel—which Hurst has offered to serve as cause for his
procedural default—unless the Ohio courts have first had an opportunity to correct the alleged
constitutional deficiency.
In his Reply, Hurst asserts that he was barred from raising the issue of ineffective
assistance of appellate counsel by the Supreme Court of Ohio when that court denied his motion
for delayed appeal. However, the Warden points out that Hurst still has available to him the
option of bringing a delayed application for reopening in the state appeals court, pursuant to
Ohio Rule of Appellate Procedure 26(B), based on claims of ineffective assistance of appellate
counsel. The rule provides:
(1) A defendant in a criminal case may apply for reopening of the appeal from the
judgment of conviction and sentence, based on a claim of ineffective assistance of
appellate counsel. An application for reopening shall be filed in the court of
appeals where the appeal was decided within ninety days from journalization of
the appellate judgment unless the applicant shows good cause for filing at a later
time.
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Ohio R. App. P. 26(B)(1) (emphasis added).
Therefore, Hurst has failed to exhaust this state court remedy and deciding his claims of
ineffective assistance of appellate counsel would put the Court “in the anomalous position of
adjudicating an unexhausted constitutional claim for which state court review might still be
available.” Carrier, 477 U.S. at 489.
V. CONCLUSION
The Court finds that Hurst has defaulted Grounds One through Three of his Petition and
that Hurst may have defaulted Grounds Four through Nine, pending a determination of whether
he can demonstrate cause and prejudice to excuse the default. The Petition is a mixed petition,
as described in Rose v. Lundy, 455 U.S. 509 (1982), because Hurst’s appellate counsel
effectiveness claim that he has offered as cause and prejudice to excuse the default of Grounds
Four through Nine was never presented, and still can be presented, to the state courts.
VI. ORDER FOR PETITIONER TO RESPOND
Hurst shall, within thirty (30) days, inform the Court whether he wishes to: (1) abandon
his claim of ineffective assistance of appellate counsel or (2) maintain this claim and attempt to
exhaust it in state court.
If Hurst chooses option one and opts to abandon his claim of ineffective assistance of
appellate counsel, he shall submit a signed statement to that effect.
If Hurst chooses option two and opts to maintain his claim of ineffective assistance of
appellate counsel, the Court will subsequently provide both parties the opportunity to brief the
issue of whether the Court has the ability to exercise its discretion, pursuant to Rhines v. Weber,
544 U.S. 269 (2005), to stay this matter and hold its decision in abeyance while Hurst attempts to
exhaust his remaining state court remedy, or, if the Court must dismiss the Petition while Hurst
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attempts to exhaust his state court remedy.
IT IS SO ORDERED.
/s/ Peter C. Economus – June 6, 2011
PETER C. ECONOMUS
UNITED STATES DISTRICT JUDGE
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