Tanksley v. Fort

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION JORDASH TANKSLEY, ) Petitioner, ) V. CV 123-029 INTERIM WARDEN J. KEVIN PERRY, 5 Respondent.

ORDER After a careful, de novo review of the file, the Court concurs with the Magistrate Judge’s Report and Recommendation (“R&R”), to which objections have been filed. (Doc. nos. 25, 26.) Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, GRANTS IN PART Respondent’s motion to dismiss, (doc. no. 18), DISMISSES Petitioner’s Grounds Two and Three for failure to exhaust, and ORDERS Petitioner, within fourteen days of this Order, to either: (1) dismiss the petition in its entirety so that he may present to the state habeas court his unexhausted claims in Grounds Two and Three; or (2) notify the Court of his preference to proceed in this Court with respect to only his exhausted claim in Ground One.

Petitioner cannot choose both, as simultaneously pursing habeas relief in both state and federal court would offend the principles of comity that form the basis for the exhaustion requirement. Horowitz v. Wainwright, 709 F.2d 1403, 1404 (11th Cir. 1983). Accordingly, the election Petitioner previously made to proceed in both courts simultaneously is invalid. (Doc. no. 23.)

If Petitioner fails to respond or make a singular election as to his decision to proceed, the Court will assume he wishes to dismiss this petition so that he may present to the state habeas court his unexhausted claims. Petitioner should note that, while a subsequent § 2254 petition will not be barred purely by virtue of the dismissal of this federal action, any future petition for a writ of habeas corpus that he files will be subject to all statutory provisions applicable to such actions, including those enacted under the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §§ 2244 & 2254.

SO ORDERED this □□ □ H day of January, 2024, at Augusta, Georgia.

A LZ itty LELLE J. RANDAL HALL, CHEF JUDGE UNITED STATES DISTRICT COURT OUTHERWN DISTRICT OF GEORGIA