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Mammone v. Jenkins

United States District Court, N.D. Ohio, Western Division

January 17, 2018

James Mammone, Petitioner
v.
Charlotte Jenkins, Warden, Chillicothe Correctional Institution, Respondent

          ORDER

          James G. Carr, Sr. U.S. District Judge

         Pending in this capital habeas case under 28 U.S.C. § 2254 is the petitioner's motion to stay proceedings while he returns to the Ohio courts to litigate his “unexhausted” claims. (Doc. 24).

         The gravamen of the motion is that petitioner's habeas attorneys have uncovered “new facts supporting claims that were never presented in state court.” (Id. at 5). The claims petitioner wishes to litigate in state court allege that trial counsel was ineffective for not presenting: 1) petitioner's Autism Spectrum Disorder as mitigation evidence (claim 14, sub-claim A); 2) evidence of petitioner's traumatic childhood and family life in mitigation (claim 14, sub-claim C); and 3) a defense of not guilty by reason of insanity (claim 19).

         As I explain below, these claims are not “unexhausted, ” but procedurally defaulted. Because petitioner “had the opportunity to develop [them] in state court, but did not[, ] [a] return to state court to pursue them would be futile and cause unnecessary delay.” Spivey v. Jenkins, 2017 WL 1113339, *5 (N.D. Ohio) (Pearson, J.).

         Accordingly, I deny the motion for a stay.

         Discussion

         Federal habeas relief is unavailable “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

         A petitioner satisfies the exhaustion requirement by fairly presenting each claim to the appropriate state courts during a complete round of review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         “Claims not first raised in state court are unexhausted and are ordinarily dismissed without prejudice, in order to permit the petitioner the opportunity to pursue them in state court.” Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002). “However, if an unexhausted claim would be procedurally barred under state law, that claim is procedurally defaulted for purposes of federal habeas review.” Id. (citations omitted).

         Federal law prohibits habeas courts from adjudicating “mixed” petitions - that is, petitions that contain both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982). Rose requires that petitioners with mixed petitions either abandon their unexhausted claims or dismiss their federal petitions without prejudice to refiling after litigating in state court.

         This “‘total exhaustion requirement created a dilemma for [some] petitioners [because] a return to state court could result in unexhausted claims becoming time-barred under the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations.” Spivey, supra, 2017 WL 1113339 at *6.

         To ameliorate the situation, the Supreme Court held in Rhines v. Weber, 544 U.S. 269, 277 (2005), that district courts have discretion to stay federal habeas proceedings while the petitioner returns to state court to litigate his unexhausted claims. But the Court emphasized that this procedure was appropriate only when “(1) there was good cause for the petitioner's failure to exhaust claims in state court first; (2) the petitioner's unexhausted claims are not plainly meritless; and (3) the petitioner has not engaged in abusive litigation tactics.” Spivey, supra, 2017 WL 1113339 at *6.

         A. Ineffective Assistance re. Autism Spectrum Diagnosis

         Sub-claim A of petitioner's fourteenth claim alleges that trial counsel “failed to introduce evidence of [his] Autism Spectrum Disorder.” (Doc. 23 at 66). According to the petition, the claim is “[b]ased on Mr. Mammone's history, records, and a ...


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