UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

LEROY WELLS, 

Petitioner, 

v. 

MARK NOOTH, 

Respondent. 

Coffin, Magistrate Judge. 

2:15-cv-01639-TC 

FINDINGS AND 

RECOMMENDATION 

Petitioner filed a petition under 2 8 U.S. C. § 2254 

challenging his convictions and sentences for Sexual Abuse in 

the First Degree, Menacing, Burglary in the First Degree, 

Stangulation, and Coercion. 

Respondent now moves to deny the petition without 

prejudice because petitioner is presently appealing his 

convictions, and therefore, has not exhausted available state 

1 - FINDINGS AND RECOMMENDATION 

Case 2:15-cv-01639-TC Document 90 Filed 05/12/16 Page 1 of 3
remedies. 

Under 28 U.S.C. § 2254 (b) (1), an application for a writ 

of habeas corpus "shall not be granted" unless "the applicant 

has exhausted the remedies available in the courts of the 

State[.]" Exhaustion occurs when a petitioner has given the 

state courts a "full and fair" opportunity to consider and 

resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S. 

1, 10 (1992). If a petitioner can present a claim to the 

state's Supreme Court, he must do so to properly exhaust that 

claim. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). 

Petitioner alleges that the criminal judgment against him 

is invalid due to a state appellate court order, dated 

October 29, 2014, that vacated the trial court's July 2014 

judgment for lack of jurisdiction, and remand the case to the 

trial court for entry of a new judgment of conviction and 

sentence. 

Petitioner is presently litigating these claim on direct 

appeal. Therefore, he has not exhausted available state 

remedies and his petition should be denied without prejudice. 

The Clerk of the Court should be directed to enter a judgment 

dismissing this proceeding. All pending motions should be 

denied as moot. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

2 - FINDINGS AND RECOMMENDATION 

Case 2:15-cv-01639-TC Document 90 Filed 05/12/16 Page 2 of 3
of appeal pursuant to Rule 4 (a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate of Appea1abi1ity 

Shoul.dpetitioner appeal., a certificate 0£ appeal.abil.ity 

shoul.d be denied as petitioner has not made a substantial. 

showing 0£ the denial. 0£ a constitutional. right. See, 28 

U.S.C. § 2253(c) (2). 

DATED this Jl::-uay of May, 2:!5J ~ 

United 

Thomas M~ States Magistrate Judge 

3 - FINDINGS AND RECOMMENDATION 

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