Opinion
Case No. 2:99-CV-371K
May 23, 2000
ORDER
The Petitioner in this matter filed a petition for habeas corpus under 28 U.S.C. § 2254. This matter was referred to the Magistrate Judge under 28 U.S.C. § 636 (b)(1)(B). Magistrate Judge Ronald N. Boyce issued a Report and Recommendation recommending that the petition be dismissed as a mixed petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982), on the basis that it contained both exhausted and unexhausted claims. This court adopted the Report and Recommendation dismissing the petition without prejudice. The Tenth Circuit reversed and remanded the case to the district court for further consideration on the issue of whether the district court should exercise its discretion to deny the petition on the merits despite the failure to exhaust state remedies pursuant to 28 U.S.C. § 2254(b)(2). On remand the matter was again referred to the Magistrate Judge under 28 U.S.C. § 636 (b)(1)(B). Magistrate Judge Ronald N. Boyce issued a Report and Recommendation recommending that the petition should be dismissed without prejudice as a mixed petition. Petitioner filed an objection to the Magistrate's Report and Recommendation.
The Court has reviewed Petitioner's file de novo, and has duly considered Petitioner's objections. The Court has carefully reviewed the Magistrate Judge's Report and Recommendation. Finding no merit in Plaintiff's objections, the Court approves and adopts the Magistrate Judge's Report and Recommendation in all its particulars.
The Tenth Circuit concluded that section 2254(b)(2) codifies the holding in Granberry v. Greer, 481 U.S. 129 (1987). Under Granberry, it is appropriate to address the merits of a habeas petition despite the failure to exhaust state remedies when "the interests of comity and federalism will be better served by addressing the merits forthwith." Id. at 134. Thus, when a district court "is convinced that the petition has no merit," the court should deny the petition on the merits rather than requiring complete exhaustion. Id. at 133. The Magistrate Judge recommends that several of petitioner's claims in this matter raise colorable federal claims and that the court cannot say it is convinced that petitioner's unexhausted claims have no merit. The claims are not easily resolvable against the petitioner. In reviewing petitioner's claims, this court agrees that petitioner may have raised colorable federal claims and therefore, it is hereby
ORDERED that the Report and Recommendation is ADOPTED in its entirety and this matter is DISMISSED without prejudice.