Kevin F. McDonald United States Magistrate Judge
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the petitioner's motion to stay (doc. 22). The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
On August 14, 2019, the petitioner filed a Section 2254 petition currently pending before the court (doc. 14-1). On December 16, 2019, the petitioner filed a "motion to stay and abeyance" (doc. 22), and the respondent filed opposition on December 30, 2019 (doc. 25).
The petitioner's limited motion references his desire to resolve his unexhausted claims in state court. He states that he is concerned that his one-year statute of limitations will expire before he is able to resubmit his fully exhausted claims (see doc. 22). A court has limited discretion to grant a stay or hold a matter in abeyance. However, case law demonstrates that such a remedy should be used sparingly. The Supreme Court of the United States has held:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.
Rhines v.
Weber, 544 U.S. 269, 277 (2005).
The petitioner has failed to identify what claim he wishes to attempt to raise in state post-conviction relief ("PCR") proceedings, and there is no indication that the petitioner has a claim of newly discovered evidence. The petitioner has failed to demonstrate what good cause exists for his failure to exhaust any claim in his 2015 PCR action, and he has failed to demonstrate that the unidentified claim has any merit. Further, the respondent states that no record of a pending PCR matter for the petitioner has been found (doc. 25 at 1).
Under the standard set forth in Rhines, the petitioner has failed to demonstrate a proper basis for a stay and has failed to demonstrate why the court should exercise its discretion by granting such a remedy. Accordingly, the petitioner's motion to stay (doc. 22) should be denied.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge January 2, 2020
Greenville, South Carolina
The parties' attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).