United States District Court, S.D. Ohio, Western Division
JAMES E. BROWN, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
an inmate in state custody at the Chillicothe Correctional
Institution, brings this case seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This matter is before the
Court on petitioner's motion to stay the proceedings
pending exhaustion. (Doc. 6). Respondent has filed a response
indicating no objection to the requested stay. (Doc. 7, at
cause appearing therefor, the Court recommends that the
motions to stay (Doc. 6) be granted. See Rhines v.
Weber, 544 U.S. 269 (2005) (district courts have
discretion to hold mixed petition in abeyance pending
exhaustion of unexhausted claims).
IT IS HEREBY RECOMMENDED that the instant proceedings be
STAYED while petitioner is afforded the opportunity to fully
exhaust his state court remedies. To ensure that judicial and
administrative resources are conserved, it is FURTHER
RECOMMENDED that the stay take the form of an administrative
stay and that the case be terminated on the Court's
THEREFORE RECOMMENDED THAT:
petition (Doc. 1) be administratively STAYED and TERMINATED
on the Court's active docket pending petitioner's
exhaustion of his Ohio remedies. The stay should be
conditioned on petitioner's filing a motion to reinstate
the case on this Court's active docket within thirty (30)
days after fully exhausting his state court remedies through
the requisite levels of state appellate review. Petitioner
should be granted leave to reinstate the case on the
Court's active docket when he has exhausted his Ohio
remedies based on a showing that he has complied with the
conditions of the stay.
certificate of appealability should 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 Aug. 6, 2001) (unpublished) (citing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 (3rd 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
respect to any application by petitioner to proceed on appeal
in forma pauperis, the Court should certify pursuant
to 28 U.S.C. § 1915(a)(3) that an appeal of any Order
adopting this Report and Recommendation would not be taken in
"good faith," and therefore DENY petitioner leave
to appeal in forma pauperis. See Fed. R. App. P.
24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after being served with
a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations. This period may be extended further by the
Court on timely motion for an extension. Such objections
shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendation is based in
whole or in part upon matters occurring on the record at an
oral hearing, the objecting party shall promptly arrange for
the transcription of the record, or such portions of it as
all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections WITHIN 14 DAYS after being served with a copy
thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
Because this Court finds the first
prong of the Slack standard has not been met, it
need not address the second prong as to whether or not
"jurists of reason" would find it debatable whether
petitioner has stated viable constitutional claims for relief
in his ...