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Parks v. Ryan

United States District Court, D. Arizona

September 23, 2014

Edward Faye Parks, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

DOUGLAS L. RAYES, District Judge.

Following a jury trial in Mohave County Superior Court in 2012, Petitioner Edward Faye Parks was found guilty of two counts of aggravated assault and one count of disorderly conduct with a weapon. The trial court sentenced Mr. Parks to concurrent sentences, the longest of which is 15.75 years.

Mr. Parks filed a petition for writ of habeas challenging his convictions on multiple grounds. ( See Doc. 8 at 6-8.) The Court referred the petition to United States Magistrate Judge David K. Duncan for report and recommendation ("R&R"). ( See Doc. 2.) Judge Duncan recommended that the Court dismiss the petition without prejudice because Mr. Parks has not exhausted state remedies. (Doc. 20 at 2.)

Mr. Parks filed objections to the R&R. (Doc. 22.) For the reasons that follow, the Court will accept the R&R's conclusions and dismiss the petition without prejudice.

I. Standard of Review.

A party may file specific written objections to the R&R's proposed findings and recommendations. The Court must undertake de novo review of those portions of the R&R to which specific objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. Fed.R.Civ.P. 72(b); 28 U.S.C. ยง 636(b)(1).

II. Analysis.

Mr. Parks objects to the finding in the R&R that he has not exhausted state remedies. (Doc. 22 at 2.) Mr. Parks claims that he has not failed to exhaust state remedies and states that "it's the fault of appointed counsel." ( Id. ) In other words, Mr. Parks does not dispute that a petition for post-conviction relief is pending in state court, but appears to take issue with the pace at which that case is proceeding. ( Id .; see also Docs. 24, 25.) Because Mr. Parks' initial post-conviction proceedings are still pending in Mohave County Superior Court, the Court agrees with Judge Duncan's finding that Mr. Parks' habeas petition is premature. Accordingly,

IT IS ORDERED that Judge Duncan's R&R (Doc. 20) is ACCEPTED.

IT IS FURTHER ORDERED that Edward Faye Parks' Amended Petition is dismissed without prejudice.

IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in forma pauperis are DENIED because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.


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