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Case 1:05-cv-00348-PB Document 3 Filed 10/17/2005 Page 1 of 12
Otis Daniels
O R D E R
facially valid); see also United States District Court for the
pleadings).
Standard of Review
Dockets.Justia.com
Case 1:05-cv-00348-PB Document 3 Filed 10/17/2005 Page 2 of 12
v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,
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Background
were ripe for appellate review and raised in the notice of appeal
but not briefed in his appeal to the NHSC. The issues raised in
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appeal but not argued in the brief and therefore waived. The
exhausted.
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Discussion
28 U.S.C. § 2241 and § 2254(a) & (b); see also Braden v. 30th
Jud. Cir. Ct. of Ky., 410 U.S. 484, 489-92 (1973); Benson v.
Super. Ct. Dep’t of Trial Ct. of Mass., 663 F.2d 355, 358-59 (1st
Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.
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constitutional error).
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Daniels asserts generally that any failure to exhaust is
the result of a lack of available state corrective processes. As
Daniels offers no specifics to support this assertion, has made a
direct appeal of his conviction and presents no reason why he
could not avail himself of post-conviction avenues of relief such
as a new trial motion or petition for a writ of habeas corpus in
the state court, I will not consider that assertion further.
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2. Stay
Weber, 125 S.Ct. 1528, 1535 (2005); see also Duncan v. Walker,
126 n.3 (1st Cir. 2001); see also Delaney v. Matesanz, 264 F.3d
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find that while petitioner has not at this time made a specific
reason that Daniels may simply not have realized the necessity of
raising each ground presented here in the state courts within the
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some or all of his claims in state court pleadings that have not
ever having his other issues considered by this Court due to the
28 U.S.C. § 2244; Pratt v. United States, 129 F.3d 54, 56-58 (1st
Cir. 1997).
Conclusion
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notify the Court that the matter is still pending in the state
courts and has not been decided, or to report any change in the
Supreme Court has ruled on his claims, and the claims are thus
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SO ORDERED.
__________________________________
James R. Muirhead
United States Magistrate Judge
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Daniels would be well-advised to submit all of the relevant
pleadings, notices of appeal, court decisions and other documents
relevant to each of his claims demonstrating that the claims and
the federal nature of the claims were in fact presented to the
state courts as alleged in his amended petition notifying this
Court that exhaustion has been completed.
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If this petition were to be dismissed for failing to
demonstrate exhaustion, the dismissal would be without prejudice
as it would be procedural and not based on the merits of Daniels’
claims. See Slack v. McDaniel, 529 U.S. 473 (2000).
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