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Pustay v. Banks

United States District Court, S.D. Mississippi, Southern Division

January 18, 2019

THOMAS STEPHAN PUSTAY PETITIONER
v.
JACQUELYN BANKS RESPONDENT

          REPORT AND RECOMMENDATION

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Respondent's Motion to Dismiss [8], to which Petitioner Thomas Stephan Pustay has responded [10]. Respondent Banks argues that the petition, filed pursuant to 28 U.S.C. § 2254, should be dismissed because it is a “mixed” petition, presenting both exhausted and unexhausted claims. Alternatively, the Respondent asserts that Pustay can avoid dismissal of the petition in its entirety if this Court permits him to dismiss his unexhausted claims voluntarily and proceed only on the exhausted claims. For the reasons explained below, the undersigned recommends that the Motion to Dismiss be denied without prejudice, and that Pustay be allowed to file an amended petition that deletes his unexhausted claims.

         FACTS AND PROCEDURAL HISTORY

         In this action, Pustay challenges his convictions in the Circuit Court of Harrison County, Mississippi, on two counts of Touching of a Child for Lustful Purposes and three counts of Sexual Battery. [8-1]. The Circuit Court sentenced Pustay to a total of forty (40) years in the custody of the MDOC on all convictions. [9-9] at 12-13.

         With the aid of counsel, Pustay appealed his convictions and sentences to the Mississippi Supreme Court, raising thirteen grounds for relief, as follows:

1. Was it error to allow the State to establish its case through impeachment of its own witnesses?
2. Did the trial court err by limiting the defense's cross-examination of Karen Pustay?
3. Did the trial court improperly limit defense evidence?
4. Did the trial court err in refusing to review records of relevant youth court proceedings?
5. Did vagueness render the indictment defective?
6. Whether it was error to replace jurors stricken peremptorily by the defense?
7. Was Pustay prejudiced by the use of irrelevant character evidence in violation of M.R.E. 404(B)?
8. Whether the trial court erred in excluding evidence under M.R.E. 412?
9. Whether the trial court allowed an improper prejudicial ...

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