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Ricky A. Hotz v. Guy Pierce

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


March 30, 2011

RICKY A. HOTZ, PETITIONER,
v.
GUY PIERCE, RESPONDENT.

The opinion of the court was delivered by: Donald G.WILKERSON United States Magistrate Judge

ORDER

Currently pending before the Court is Petitioner's Motion Opposing the Court's Order of Denial for a Stay and Requesting Leave for Reconsideration and Reinstatement on-of the Request for a Stay and Abeyance (Doc. 29). Petitioner seeks reconsideration of the Court's Order denying his request for stay and abeyance (Doc. 28). In support, Petitioner states that he intends on filing a successive post-conviction petition and requests that the Court stay his federal habeas petition while he exhausts his state court remedies. As explained in the Court's Order (Doc. 28), a stay and abeyance is appropriate only where a petitioner has had filed a "mixed" habeas petition including both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). Petitioner, however, has not filed a mixed petition. His petition contains claims that were properly exhausted in state court.

Therefore, Petitioner is not entitled to a stay and abeyance. See Harper v. Shaw, No. 08-CV- 2293, 2009 WL 2843247, at *4 (C.D. Ill. August 7, 2009)(petitioner was not entitled to a stay because he did not file a mixed habeas petition).

Once Petitioner files a successive post-conviction petition in state court, he may then request a motion for stay and abeyance of his federal habeas petition. For the reasons stated above, Plaintiff's Motion (Doc. 29) is DENIED.

IT IS SO ORDERED.

20110330

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