United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
DECISION AND ORDER DENYING MOTION FOR STAY
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
habeas corpus case, brought pro se by Petitioner Brian
Henley, is before the Court on Petitioner's Motion to
Stay pending exhaustion of state court remedies (ECF No. 8).
case was filed in December 2017 to challenge a 2004
conviction in the Montgomery County Court of Common Pleas on
four counts of rape, one count of kidnapping, two counts of
felonious assault, and one count of attempted felonious
assault (Petition, ECF No. 1, PageID 1). Upon initial review,
the Magistrate Judge found “that it does not plainly
appear from the face of the Petition and any exhibits
attached thereto that the Petitioner is not entitled to
relief in this Court, ” and ordered the State to file a
return of writ and the state court record (ECF No. 6, PageID
37). The time within which the State was ordered to make
these filings has not yet expired, so this Court does not
have the full state court record before it.
Henley's Motion recites that he has filed a complaint in
mandamus against The Honorable Dennis J. Langer, Judge of the
Common Pleas Court, to compel Judge Langer to issue a final
appealable order in the criminal case because, Henley
alleges, the judgment issued in 2004 consists of multiple
documents, in violation of the so-called “one
document” rule announced in State v. Baker,
119 Ohio St.3d 197 (2008).
begins by restating the well-settled rule that the
intermediate court of appeal of Ohio only have jurisdiction
to review orders that are final and appealable. Id.
at ¶ 6, citing § 3(B)(2), Article IV, of the Ohio
Constitution and Ohio Revised Code § 2505.02.
Baker clarified the meaning of that statute and Ohio
R. Crim. P. 32(C) by stating:
We now hold that a judgment of conviction is a final
appealable order under R.C. 2505.02 when it sets forth (1)
the guilty plea, the jury verdict, or the finding of the
court upon which the conviction is based; (2) the sentence;
(3) the signature of the judge; and (4) entry on the journal
by the clerk of court. Simply stated, a defendant is entitled
to appeal an order that sets forth the manner of conviction
and the sentence.
Id. at ¶ 18.
of the docket for State v. Henley, No.
04CR01953. shows a termination entry by Judge Langer
on November 3, 2004, which was amended November 24, 2004. An
amended termination entry was filed October 27, 2016, from
which an appeal was taken to the Second District Court of
Appeals. Another amended termination entry was filed July 18,
2017. Most recently in August 2017 Judge Langer denied a
motion for a revised sentencing entry. Search of the
Montgomery County Clerk of Court's database reveals no case
bearing the number recited by Petitioner, 27780. The only
case in the Second District shown as open is case no. CA
027326 which shows a notice of appeal from the Common Pleas
Court on November 4, 2016, from the October 27, 2016, amended
judgment. On July 14, 2017, the Second District granted
relief on Henley's first assignment of error, vacating
post-release control on the first five counts of conviction,
but denied relief on the remaining eight assignments.
State v. Henley, 2017 Ohio App. LEXIS 2899
(2nd Dist. Jul. 14, 2017), appellate jurisdiction
declined, 151 Ohio St.3d 1428 (2017).
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 held:
[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.” Id. at 277.
Henley has not shown good cause for a stay of these
proceedings. He has not attached a copy of his complaint for
mandamus or otherwise made a showing that he is at all likely
to succeed on that complaint. That is, he has not shown that
Judge Langer has a duty to issue a new judgment entry and it
is entirely possible that the Second District will deny