United States District Court, S.D. Ohio, Western Division, Dayton
CEDRIC E. POWELL, Petitioner,
MARK HOOKS, Warden, Respondent.
M. Rose District Judge.
DECISION AND ORDER DENYING RENEWED MOTION TO
Michael R. Merz United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's renewed Motion to Stay pending
exhaustion in the Ohio courts of his Motion to Vacate a Void
Judgment (State v. Powell, Case No. 99-CR-631) filed
in that court January 31, 2017)(ECF No. 15).
courts have authority to grant stays in habeas corpus cases
to permit exhaustion of state court remedies in consideration
of the AEDPA's preference for state court initial
resolution of claims. However, in recognizing that authority,
the Supreme Court:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are
plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion
for a district court to deny a stay and to dismiss a mixed
petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005).
“Staying a federal habeas petition frustrates
AEDPA's objective of encouraging finality by allowing a
petitioner to delay the resolution of federal proceedings.
February 14, 2017, this Court denied Petitioner's first
Motion for Stay without prejudice to its renewal if
accompanied by a full copy of his Motion to Vacate a Void
Judgment filed in the Montgomery County Court of Common
Pleas, along with a memorandum explaining his delay and what
theory he relies on for obtaining relief (ECF No. 9, PageID
Powell's instant Motion for Stay is denied for the
of all, the Rhines v. Weber procedure was designed
to deal with a situation where a habeas petitioner has a
mixed petition including both exhausted and unexhausted
claims. Because of the statute of limitations adopted by the
AEDPA, dismissal without prejudice of the unexhausted claims
may result in their being barred by the statute of
limitations. In this case, however, Mr. Powell's sole
ground for relief is ineffective assistance of counsel and
not the claim included in his pending motion in the Common
Mr. Powell has not shown good cause for his failure to bring
this claim earlier in the state courts. The claim he makes of
prosecutorial misconduct was known to him at the time of
trial in 1999; he has offered no persuasive excuse for
waiting until January 31, 2017,  for filing in the Common
the Rhines Court held the district court
“would abuse its discretion if it were to grant him a
stay when his unexhausted claims are plainly
meritless.” In the Common Pleas Court, the State has
argued Petitioner's claim is barred by res judicata
(State Court Record, ECF No. 12, PageID 575, et seq.) To
prove that defense, the State quoted as follows from the
Decision of the Common Pleas Court to grant summary judgment
on Petitioner's petition for post-conviction relief:
Shannon was extensively cross-examined regarding three
statements in her handwriting that retract her charges
against [the Defendant]. She testified that after she was
released from the hospital she wrote and signed three
statements, Def 's Exhs. C, D. and E. Trial Transcript at
800. She admitted that she signed her mother's signature
on Def 's Exh. E. Trial Transcript at 806. Powell was not
present when she wrote these statements. She claimed that she
didn't read the statements and did not know what she was
signing. Id. At 808. She testified that she wrote
the first statement, Def 's Exh. C, because she was paid
$50 by Katrina Benson, Powell's girlfriend. Trial
Transcript at 824. She said that she wrote the second
statement, Def's Exh. D, because she was paid $80 by
Katrina. She wrote the third statement, Def's Exh. E,
because Katrina had promised to take her shopping. She
further testified that Davote Kelly, a.k.a.
"Boss.'' Was not present when she wrote the
statements. She denied telling "Boss" that "it
didn't happen." Trial Transcript at 815. On
re-direct examination Shannon testified that Katrina Benson
and Davote Kelly, "Boss Man, " came to her house.
Katrina wanted her to sign some papers, but Shannon did not
do so on that occasion. Id. At 964-968. She
testified on redirect that on the next day, Katrina picked
her up to shop at Krogers. They then went to Katrina's
house where Katrina asked Shannon to copy a paper in her own
handwriting. Shannon did so but did not know what the paper,
Def's Exh. C, stated. She testified that she could not
read. Regarding the second letter, Def's Exh. D, she
stated that Katrina came to her house, and Shannon copied and
signed this second letter in return for money. She signed her
mother's name. Again, she didn't know what was in the
letter. Shannon testified that this letter was not notarized
in her presence. Trial Transcript at 976-982. Regarding the
third letter, D~f"s Exh. E. Shannon testified that
Katrina came to her house and told her that they would go
shopping if she, Shannon, copied and signed the letter.
Shannon did so. This letter was not notarized in her
presence. Trial Transcript at 982-985. On re-cross,
Powell's attorney elicited testimony from Shannon as to
her schooling and employment and her ability to read and
write. Id. At 1008-1018. She again denied telling
"Boss Man" that Powell did not rape, kidnap or
assault her. Id. At 1019.
defense of procedural default is available to the State to
defeat this claim if it were pleaded or to defend against an
amendment of the Petition to add this claim. Ohio's
doctrine of res judicata in criminal cases,
enunciated in State v. Perry,10 Ohio St. 2d 175
(1967), is an adequate and independent state ground of
decision, as the Sixth Circuit has repeatedly held. Durr
v. Mitchell, 487 F.3d 423, 432 (6th Cir.
2007); Buell v. Mitchell, 274 F.3d 337
(6th Cir. 2001); Coleman v. Mitchell, 268
F.3d 417 (6th Cir. 2001); Byrd v.
Collins, 209 F.3d 486, 521-22 (6th Cir.
2000); Rust v. Zent,17 F.3d 155, 160-61
(6th Cir. 1994)(citation omitted); Van Hook ...