Opinion
CIVIL ACTION NO: 10-1903
12-28-2011
PAUL A. JAMES v. WARDEN RUSSELL BUTLER, LOUISIANA DEPT. OF CORRECTIONS
ORDER
Before the Court is Paul James's petition for a writ of habeas corpus. Having reviewed de novo the petition, the record, the applicable law, the Magistrate Judge's Report and Recommendation, and the petitioner's response thereto, the Court approves the Report and adopts it as its opinion.
A federal district court may not grant relief on habeas unless all claims in the petition are exhausted. See Sam v. Louisiana, 409 Fed. Appx. 758, 761 (5th Cir. 2011) (citing Rhines v. Weber, 544 U.S. 269, 274 (2005)). Therefore, a "mixed petition" of both exhausted and unexhausted claims usually should be dismissed without prejudice. See, e.g., Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998). The Magistrate Judge's Report recommends dismissing claims four and seven, per petitioner's earlier request, and claims five and six, for which state court remedies also have not been exhausted. Although the petitioner does not oppose the Magistrate Judge's Report and Recommendation, he does respond to the Magistrate's determination by requesting that this Court dismiss all unexhausted claims and proceed on the exhausted claims only. Therefore, IT IS ORDERED that the matter be remanded to the Magistrate for review of petitioner's exhausted claims only. Petitioner's fourth, fifth, sixth, and seventh claims are hereby dismissed. The Court will refrain from issuing or denying a Certificate of Appealability until rendering a final order in this case. See United States v. Morris, 229 Fed. Appx. 308, 309 (5th Cir. 2007) (finding that because the district court did not rule on and ordered further briefing on one of petitioner's habeas claims, the judgment denying his other claims was not a final order, and appellate jurisdiction did not exist).
Petitioner abandons claims four and seven in his amended petition, R. Doc. 16.
R. Doc. 23.
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New Orleans, Louisiana, this 28th day of December, 2011.
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SARAH S. VANCE
UNITED STATES DISTRICT JUDGE