United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent's Motion to
Dismiss , to which Petitioner Thomas Stephan Pustay has
responded . 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.
AND PROCEDURAL HISTORY
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.
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
9. Whether the trial court allowed an improper prejudicial