United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge
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).
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).
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)
I deny the motion for a stay.
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).
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).
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).
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
“‘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.
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.
Ineffective Assistance re. Autism Spectrum Diagnosis
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 ...