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Henley v. Marquis

United States District Court, S.D. Ohio, Western Division, Dayton

January 23, 2018

DAVID MARQUIS, Warden, Richland Correctional Institution Respondent.

          Thomas M. Rose District Judge.



         This 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).

         This 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.

         Mr. 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).

         Baker 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.

         Review of the docket for State v. Henley, No. 04CR01953.[1] 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[2] 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).

         District 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.

         Mr. 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 ...

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