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Tyree v. Lindsay

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 4, 2006

WARDELL L. TYREE, PETITIONER
v.
CAMERON LINDSAY AND PA ATTORNEY GENERAL, RESPONDENTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 4th day of April, 2006, upon consideration of the report of the magistrate judge (Doc. 8), to which no objections were filed, recommending that the above-captioned case be stayed pending petitioner's exhaustion of available state court remedies, see 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus . . . shall not be granted unless . . . the applicant has exhausted the remedies available in the courts of the State; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant."), and, following an independent review of the record, it appearing that petitioner has not exhausted available state court remedies (see Doc. 1 at 3) nor claimed that exhaustion would be futile (see Doc. 1),*fn1 see id., and that petitioner is currently exhausting his claims before the courts of the District of Columbia, see Rhines v. Weber, 125 S.Ct. 1528, 1533-34 (2005) (stating that courts may stay habeas corpus proceedings while a petitioner exhausts state remedies), it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 8) is ADOPTED.

2. Proceedings on the petition for writ of habeas corpus (Doc. 1) are STAYED indefinitely pending the conclusion of D.C. court proceedings with respect to petitioner's claims.

3. Petitioner shall file with this court a notice of the pendency of D.C. court proceedings, accompanied by a copy of the latest order entered in the court proceedings, on or before June 1, 2006, and on or before the first day of every third month thereafter.

4. Petitioner shall file with this court a notice of the conclusion of D.C. court proceedings, accompanied by copies of all orders entered in the court proceedings, within thirty days of the date of the final decision of the D.C. court.

5. Failure to comply with this order will result in vacation of the stay entered in this order, and dismissal of the petition for writ of habeas corpus.

6. The Clerk of Court is directed to CLOSE this case for statistical purposes only.

7. The above-captioned case is REMANDED to the magistrate judge for further proceedings consistent with this order.

CHRISTOPHER C. CONNER United States District Judge


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