Agofsky v. Jones

SEYMOUR, Circuit Judge.

Petitioner John Doe,1 a federal prisoner, filed this first habeas petition pursuant to 28 U.S.C. § 2254 and an almost identical post-conviction relief application in state court, challenging the constitutionality of a prior Oklahoma state court conviction based on evidence of actual innocence. He also filed a motion to abate this § 2254 action pending state court exhaustion of his claims. The district court dismissed his habeas petition without prejudice, adopting the magistrate judge’s Report and Recommendation and holding that a stay under Rhines v. Weber, 544 U.S.…