United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order No. 3-251, this habeas case has been
automatically referred for findings and recommendation.
Before the Court is the petitioner's Motion to Stay
the § 2254 Petition and Hold in Abeyance and Grant Leave
of Court to Ex[h]aust
[Actual] Innocence Claim Recant in State Court
and Return to Amend the § 2254 with
Ex[h]austed Claim, received on March
13, 2019 (doc. 16). Based on the relevant filings and
applicable law, the motion to stay should be
January 27, 2016, the petitioner was convicted of sexual
assault of a child. (doc.15-1 at 64.) The judgment was
affirmed on appeal on February 27, 2017. (doc. 15-7 at 1.) He
did not file a petition for discretionary review. (doc. 3 at
3.) He filed a state habeas application on August 22, 2017,
and it was denied on March 28, 2018). (doc. 15-10 at 18; doc.
petitioner's habeas petition under 28 U.S.C. § 2254,
received on November 5, 2018, raised several grounds of
ineffective assistance of counsel. (See doc. 3 at 6;
doc. 4 at 8-22.) On March 4, 2019, the respondent filed an
answer. (See doc. 13.) The petitioner now seeks a
stay so that he may return to state court and present a claim
of actual innocence with a recanting affidavit. (See
petitioner must fully exhaust state remedies before seeking
federal habeas relief. 28 U.S.C. § 2254(b). To exhaust
in accordance with § 2254, a petitioner must fairly
present the factual and legal basis of any claim to the
highest available state court for review prior to raising it
in federal court. See Deters v. Collins, 985 F.2d
789, 795 (5th Cir. 1993); Richardson v. Procunier,
762 F.2d 429, 432 (5th Cir. 1985); Carter v.
Estelle, 677 F.2d 427, 443 (5th Cir.
1982). A stay and abeyance should be granted only
in limited circumstances when there is good cause for the
failure to exhaust, the unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics. See
Rhines v. Weber, 544 U.S. 269, 278 (2005).
petitioner has not met the Rhines standard. Although
there is no indication that the petitioner is engaging in
intentionally dilatory litigation tactics, his one-paragraph
motion does not explain or show good cause for his failure to
present the new claim in state court before filing his §
2254 petition. Nor does it show that his new claim is
potentially meritorious. He has not shown that he is entitled to
petitioner's motion to stay should be
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of these findings, conclusions and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions
and recommendation must file specific written objections
within fourteen days after being served with a copy.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
In order to be specific, an objection must identify the
specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the
place in the magistrate judge's findings, conclusions and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual ...