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Pustay v. Banks

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

February 12, 2019

THOMAS PUSTAY
v.
JACQUELYN BANKS

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [11]; DENYING WITHOUT PREJUDICE JACQUELYN BANKS' MOTION [8] TO DIMISS; AND DENYING AS MOOT THOMAS PUSTAY'S MOTION [12] FOR EXTENSION OF TIME TO REFILE HIS PETITION

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the Report and Recommendation [11] of United States Magistrate Judge F. Keith Ball, entered in this case on January 18, 2019, Defendant Jacquelyn Banks' Motion [8] to Dismiss for Failure to Exhaust, and Petitioner Thomas Pustay's Motion [12] for Extension of Time to Refile his Petition. The Magistrate Judge recommended that Defendant Jacquelyn Bank's Motion [8] to Dismiss be denied without prejudice and that Petitioner Thomas Pustay be allowed to file an amended petition that deletes all unexhausted claims.

         Neither party has submitted any objections to the Report and Recommendation [11], and the time for doing so has passed. After due consideration of Defendant's Motion [8] to Dismiss, the Report and Recommendation [11], Petitioner Pustay's Petition [1], Petitioner's Motion [12], the record, and relevant legal authority, the Court finds that the Magistrate Judge's Report and Recommendation [11] should be adopted as the Order of the Court. Defendant's Motion [8] to Dismiss for Failure to Exhaust should be denied without prejudice, and Petitioner Thomas Pustay shall be granted fourteen (14) days from the entry of this Order to amend his pleadings to remove unexhausted claims five, seven, nine, ten, and eleven. Petitioner Thomas Pustay's Motion [12] should be denied as moot.

         I. RELEVANT BACKGROUND

         Petitioner Thomas Pustay (“Petitioner” or “Pustay”), acting pro se, filed this petition pursuant to 28 U.S.C. §2254, challenging his convictions in the Circuit Court of Harrison County, Mississippi. Pet. [1] at 1. The Circuit Court sentenced Pustay to forty years imprisonment on two counts of Touching of a Child for Lustful Purposes and three counts of Sexual Battery. Id.

         On appeal to the Mississippi Court of Appeals, Pustay raised thirteen grounds for relief. Pustay v. State, 221 So.3d 320, 328 (Miss. Ct. App. 2017). The Court of Appeals denied relief on all of Pustay's claims, but specifically denied without prejudice Pustay's claims of ineffective assistance of counsel. Id. at 353. Pustay then sought a writ of certiorari from the Mississippi Supreme Court, which it denied on May 22, 2017. Order Denying Writ [8-4]. In Pustay's petition before that court, he advanced only eight of his original thirteen grounds for relief. Pet. for Writ of Certiorari [8-3]. Pustay filed the instant habeas petition in this Court on May 24, 2018, asserting all thirteen of the grounds for relief he had originally asserted before the Mississippi Court of Appeals. Pet. [1].

         Defendant Jacquelyn Banks (“Banks”) has filed a Motion [8] to Dismiss the Petition [1], arguing that it constitutes a “mixed” petition, stating exhausted and unexhausted claims. Mot. [8] at 6-8. Banks recognized that this Court may grant a petitioner leave to amend his petition to remove unexhausted claims. Id. at 8-11. Accordingly, Pustay responded requesting that he be permitted to withdraw those claims which he did not exhaust. Resp. [10].

         The Magistrate Judge entered his Report and Recommendation [11] on January 18, 2019, and recommended that Defendant's Motion [8] to Dismiss for Failure to Exhaust be denied without prejudice and that Petitioner Thomas Pustay be permitted to amend his pleadings to remove unexhausted claims five, seven, nine, ten, and eleven. R. & R. [11] at 4-5. Neither party submitted objections to the Report and Recommendation [11]; however, Pustay has filed a Motion [12] for Extension of Time to Refile his Petition, asking this Court to provide additional time past February 1, 2019, to amend.

         II. DISCUSSION

         Where no party has objected to a magistrate judge's proposed findings of fact and recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). In such cases, the Court applies the “clearly erroneous, abuse of discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         Having conducted the required review, the Court concludes that the Magistrate Judge thoroughly considered all issues and that the Magistrate Judge's Report and Recommendation is neither clearly erroneous nor contrary to law. The Report and Recommendation should be adopted as the opinion of the Court.

         III. CONCLUSION

         The Court finds that the Magistrate Judge properly recommended that Defendant Jacquelyn Banks' Motion [8] to Dismiss should be denied without prejudice, and that Petitioner Thomas Pustay should be allowed to file an amended petition that does not contain unexhausted claims. The Report and Recommendation [11] will be adopted as the opinion of the Court. Because this Order provides Pustay fourteen (14) days from the date of its entry to amend his petition, the Court will deny Pustay's Motion [12] for Additional Time to Refile his Petition as moot.

         IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate Judge's Report and Recommendation [11] entered in this case on January 18th, ...


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