United States District Court, S.D. Ohio, Western Division
J. Dlott, Judge United States District Court.
an inmate in state custody at the Lebanon Correctional
Institution, in Lebanon, Ohio, filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 3). On August 11, 2017, Magistrate Judge Litkovitz
issued a Report and Recommendation, in which she recommended
that the petition (Doc. 3) be administratively stayed and
terminated on the Court's active docket pending
petitioner's exhaustion of his Ohio remedies and that
respondent's motion to dismiss (Doc. 6) be denied without
prejudice subject to refiling if and when appropriate. (Doc.
9, at PageID 239-40). The parties were notified that
objections were due within fourteen days after being served
with a copy of the Report and Recommendation. (Doc. 9, at
PageID 242). No objections were filed within the time
permitted and, on September 5, 2017, after reviewing the
Report and Recommendation, the Court adopted it. (Docs. 10,
September 14, 2017, petitioner filed a “Motion for
Findings and Conclusions by the Court Amending Its Order and
Making Additional Findings” (Doc. 12), which included
petitioner's objections and a declaration from Billy Dee
Baily, whom petitioner asserts is the prison librarian,
stating that Baily “scanned [petitioner's]
Objection on August 23, 2017, sending it to the federal
district court in Ci[n]cinnati, Ohio.” (Doc. 12, at
PageID 248, 250). Thereafter, on September 20, 2017,
petitioner separately filed his “Objection.”
(Doc. 13). On September 20, 2017, petitioner also filed a
second “Motion for Findings and Conclusions by the
Court Amending Its Order and Making Additional Findings,
” again asking the Court to consider his objections.
(Doc. 14). On January 26, 2018, petitioner filed a motion for
a certificate of appealability. (Doc. 15).
petitioner's objections (Doc. 13) were received by the
Court outside the time for filing objections, the Baily
declaration included within petitioner's first motion for
findings and conclusions (Doc. 12) reflects a date of August
23, 2017, for the submission of petitioner's objections
to the Court. The Court applies the “mailbox rule,
” which holds that a prisoner's pleading is
considered “filed” when it is given to prison
authorities, and deems the objections timely filed. See
Houston v. Lack, 487 U.S. 266, 273 (1988). The Court
therefore withdraws its September 5, 2017, Order adopting the
Report and Recommendation (Doc. 10) and will consider de novo
petitioner's objections (Doc. 13) to the Report and
Recommendation (Doc. 9).
objections, petitioner does not dispute that he has not
exhausted his state court remedies. However, he argues that
cause and prejudice and futility warrant an exception to the
exhaustion requirement. (Doc. 13, at PageID 265-73).
Petitioner has failed to establish any error in the
Magistrate Judge's Report and Recommendation.
Petitioner's cause and prejudice argument (see
Doc. 13, at PageID 265-72) conflates the distinct concepts of
procedural default and exhaustion. See Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (stating
that “[e]xhaustion and procedural default . . . are
distinct concepts”); see also Johnson v.
Glunt, No. 14-2317, 2014 WL 5334078 (E.D. Pa Oct. 20,
2014) (explaining that “the cause and prejudice or
actual innocence exceptions to the procedural default rule
are not applicable to the exhaustion requirement”).
Petitioner's futility argument fails for the reasons
stated in the Magistrate Judge's Report and
Recommendation. (See Doc. 9, at PageID 234, citing
Sampson v. Love, 782 F.2d 53, 58 (6th Cir. 1986)
(reiterating that “where the state's remedial
process is open to interpretation with respect to the
availability of relief via that process, the state should be
given an opportunity to adopt that interpretation”)).
petitioner seeks a stay of his federal habeas action pending
exhaustion. (See Doc. 13, at PageID 274). The
Magistrate Judge's Report and Recommendation recommends
that the petition be administratively stayed and terminated
on the Court's active docket pending petitioner's
exhaustion of his Ohio remedies. (Doc. 9, at PageID 239-40).
Petitioner's alternative argument apparently concedes
that the Magistrate Judge's recommendation of a stay
pending petitioner's exhaustion of his Ohio remedies is
with the foregoing, it is ORDERED that:
1. Petitioner's objections (Doc. 13) are deemed timely
filed. Accordingly, the Court's September 5, 2017, Order
adopting the Report and Recommendation (Doc. 10) and the
concurrently filed judgment (Doc. 11) are hereby
2. Having considered the Report and Recommendation (Doc. 9)
in light of petitioner's objections (Doc. 13), the Court
orders that petitioner's objections (Doc. 13) are
OVERRULED and the Report and Recommendation
(Doc. 9) is ADOPTED in its entirety.
3. Respondent's motion to dismiss (Doc. 6) is
DENIED without prejudice subject to refiling
if and when appropriate.
4. A certificate of appealability will not issue under the
standard set forth in Slack v. McDaniel, 529 U.S.
473, 484-85 (2000), which is applicable to this case
involving a recommended stay of the petition so that
petitioner can exhaust available state court remedies.
Cf. Porter v. White, No. 01-cv-72798-DT, 2001 WL
902612, at *3 (E.D. Mich. Aug. 6, 2001) (unpublished) (citing
Henry v. Dep't of Corrections, 197 F.3d 1361
(11th Cir. 1999) (pre-Slack case)) (certificate of
appealability denied when case dismissed on exhaustion
grounds). See generally Carmichael v. White, 163
F.3d 1044, 1045 (8th Cir. 1998); Christy v. Horn,
115 F.3d 201, 203-206 (3d Cir. 1997) (order staying habeas
petition to allow exhaustion of state remedies is appealable
collateral order). “Jurists of reason” would not
find it debatable whether this Court is correct in its
procedural ruling that petitioner has failed to exhaust state
court remedies and that the case should be stayed (as opposed
to dismissed without prejudice) pending exhaustion of such
5. With respect to any application by petitioner to proceed
on appeal in forma pauperis, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this Order would not be taken in “good faith, ”
and therefore DENIES petitioner leave to
appeal in forma pauperis. See Fed. R. App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.
6. In light of the Court's findings, petitioner's
motions for findings and conclusions (Docs. 12 & 14) and his
motion for a certificate of appealability (Doc. 15) are
DENIED as moot.