Opinion
No. 4:11CV1459 JCH
02-19-2012
WAYNE JONES, Petitioner, v. STATE OF MISSOURI, Respondent.
MEMORANDUM AND ORDER
This matter is before the Court on petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because "it plainly appears from the petition . . . that the petitioner is not entitled to relief," the Court will dismiss the petition. Rule 4 of the Rules Governing § 2254 Cases.
Petitioner was sentenced to ten years' imprisonment on August 12, 2011. State v. Jones, 1022-CR3741-01 (22nd Judicial Circuit, City of St. Louis). Petitioner filed a notice of appeal on August 19, 2011. Jones v. State, ED97195 (Mo. Ct. App.). The appeal is still pending. Petitioner then filed a Rule 29.15 motion on September 26, 2011. Jones v. State, 1122-CC10574 (22nd Judicial Circuit, City of St. Louis). The postconviction relief motion has been stayed pending the outcome of the appeal.
Before federal habeas relief can be granted, a person in state custody is required to exhaust available state remedies. 28 U.S.C. § 2254(b)(1). In this case, petitioner is currently pursuing state remedies in the state courts. As a result, the Court will dismiss this action without prejudice for failure to exhaust state remedies.
Furthermore, petitioner has failed to make a substantial showing of the denial of a constitutional right in relation to his failure to exhaust, which requires a demonstration "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
____________
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE