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Quaster v. Sobina

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA


March 13, 2007

KENNETH CRAIG QUASTER, PETITIONER
v.
RAYMOND SOBINA, WARDEN, AND PENNSYLVANIA STATE ATTORNEY GENERAL, RESPONDENTS

The opinion of the court was delivered by: Judge Kosik

ORDER

NOW, THEREFORE, THIS 13th DAY OF MARCH, 2007, IT APPEARING TO THE COURT THAT:

(1) Petitioner, Kenneth Craig Quaster, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on June 23, 2006;

(2) In his petition, petitioner raised six grounds for relief, several of which petitioner admits are still pending in state court proceedings and are unexhausted;

(3) The matter was assigned to Magistrate Judge Malachy E. Mannion;

(4) In conjunction with the petition for writ of habeas corpus, petitioner filed a motion for stay and abeyance pending the completion of his state court proceedings;

(5) On January 18, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the motion to stay be denied because the petitioner failed to meet the requirements for obtaining a stay in a mixed petition case citing Rhines v. Weber, 544 U.S. 269 (2005). The Magistrate Judge also recommended that the petition be dismissed without prejudice;

(6) On February 5, 2007, the petitioner filed objections to the Report and Recommendations of the Magistrate Judge;

(7) In his objections, the petitioner states that he has no problem with his motion for stay being denied, but objects to the recommendation that the petition be dismissed. Petitioner then withdraws the unexhausted claims raised in his second state P.C.R.A. petition;*fn1

IT FURTHER APPEARING THAT:

(8) In Rhines v. Weber, supra., the Court held that the district court should allow a petitioner to delete the unexhausted claims and proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief;

(9) Because petitioner seeks to withdraw the unexhausted claims raised in his second state P.C.R.A. petition and to proceed only with the exhausted state claims, we will remand the instant action to the Magistrate Judge for further proceedings;

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) The Report and Recommendation of Magistrate Judge Malachy E. Mannion dated January 18, 2007 (Document 10) is adopted to the extent that the petitioner's motion to stay (Document 2) is denied; and,

(2) The instant action is remanded to the Magistrate Judge for further proceedings.

Edwin M. Kosik United States District Judge


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