Opinion
CASE NO. 6:13-cv-602-Orl-36DAB
04-15-2013
MARK EDWARD SCHMIDTER, Petitioner, v. MAYOR, ORANGE COUNTY, FLORIDA, et al., Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. No. 1). Petitioner currently has pending an appeal with the Supreme Court of Florida, which concerns the judgment and sentence under attack in this case.
The Rules governing habeas corpus cases permit the Court to summarily dismiss a petition when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. In this case, petitioner is currently pursuing his state court remedies through a pending appeal with the Supreme Court of Florida. "To allow simultaneous federal and state proceedings would offend the principles of comity that form the basis for the exhaustion requirement." Brown v. Walker, No. 1: 09-cv-2534-WSD, 2010 WL 3516820, at *1 (N.D. Ga. Aug. 31, 2010) (citing Horowitz v. Wainwright, 709 F.2d 1403, 1404 (11th Cir.1983). Petitioner has not shown that existing circumstances render his available state remedies ineffective to protect his right, and there is no indication that excessive appellate delay has violated his right to due process or rendered the state process ineffective.
In fact, the proceedings in the Supreme Court of Florida were only recently initiated on or around March 10, 2013.
As a matter of comity, it is best left to the Florida state courts to determine Petitioner's constitutional claims and challenges on appeal. That appeal is still pending and has not yet been exhausted. In particular, the pending state appeal might result in the reversal of the petitioner's conviction and eliminate the federal question, thereby rendering any decision by this Court moot and wasting precious judicial resources. Consequently, the Court concludes that this case should be dismissed in light of the pending appeal with the Supreme Court of Florida.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Mark Edward Schmidter is DENIED, and this case is DISMISSED WITHOUT PREJUDICE.
2. The Clerk of the Court is directed to enter judgment accordingly and to close this case.
3. All pending motions are DENIED as moot.
4. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability shall not issue. 28 U.S.C. § 2253(b)(2).
DONE AND ORDERED in Chambers in Orlando, Florida, this 15th day of April, 2013.
____________________
Charlene Edwards Honeywell
United States District Judge
Copies to:
OrlP-2 4/15
Counsel of Record