United States District Court, S.D. Ohio, Western Division
SUPPLEMENTAL REPORT AND RECOMMENDATION
Gregory Wehrman United States Magistrate Judge.
habeas corpus case, a dispositive Report and Recommendation
is pending before the District Court. (Doc. 27). Petitioner
has now filed a “Motion for Certificate of
Appealability” (Doc. 30) and a “Motion for Stay
to File Reconsideration in the Twelfth District Court of
Appeals” (Doc. 31). For the following reasons, both
motions should be DENIED.
motion for a certificate of appealability (Doc. 30) should be
DENIED because (1) it is premature, given
that the undersigned's Report and Recommendation is
pending before the District Court, and (2) for the reasons
stated in the Report and Recommendation, petitioner has not
met the standard under Slack v. McDaniel, 529 U.S.
473, 484-85 (2000), for obtaining a certificate of
appealability. (See Doc. 27, at PageID 1001-21).
motion for stay (Doc. 31) should also be
DENIED. Petitioner seeks to stay
this case so that he may return to the state courts to
exhaust a new claim that he would then seek to add to his
petition. (See id.).
district court's authority to stay a habeas proceeding
pending state court action is recognized in Rhines v.
Weber, 544 U.S. 269 (2005). The same case limits the
court's authority to stay to cases where there is good
cause for a petitioner's failure to exhaust before coming
to federal court. See id. at 278. Petitioner has
provided no basis for his not previously exhausting the new
claim he seeks to bring, which arises out of the Ohio Court
of Appeals' 2015 dismissal of his direct appeal.
(See Doc. 31, at PageID 1065; see also Doc.
27, at PageID 995-96 (setting for relevant procedural history
of case)). Further, to the extent that petitioner would seek
leave to amend his petition to raise this new claim, a motion
for leave to amend may be denied if it is brought after undue
delay or with a dilatory motive. Foman v. Davis, 371
U.S. 178, 182 (1962). To move to amend when the case is
already pending on a dispositive Report and Recommendation is
in sum, the undersigned concludes that petitioner's
Motion for Certificate of Appealability (Doc. 30) and Motion
for Stay to File Reconsideration in the Twelfth District
Court of Appeals (Doc. 31) should be DENIED.
IS THEREFORE RECOMMENDED THAT:
Petitioner's Motion for Certificate of Appealability
(Doc. 30) and Motion for Stay to File Reconsideration in the
Twelfth District Court of Appeals (Doc. 31) be
Court DENY with prejudice the 28 U.S.C.
§ 2254 petition for a writ of habeas corpus (Doc. 4) for
the reasons stated in the undersigned's initial Report
and Recommendation (Doc. 27).
certificate of appealability should not issue with respect to
the claims alleged in the petition, which this Court has
concluded are waived and thus procedurally barred from
review, because under the first prong of the applicable
two-part standard enunciated in Slack v. McDaniel,
529 U.S. 473, 484-85 (2000), “jurists of reason”
would not find it debatable whether this Court is correct in
its procedural ruling. In addition, a certificate of
appealability should not issue with respect to the claims
addressed on the merits herein in the absence of a
substantial showing that petitioner has stated a
“viable claim of the denial of a constitutional
right” or that the issues presented are “adequate
to deserve encouragement to proceed further.” See
Slack, 529 U.S. at 475 (citing Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)); see
also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
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 the initial Report and Recommendation (Doc. 27)
and/or the instant Supplemental Report and Recommendation
would not be taken in “good faith, ” and
therefore DENY petitioner leave to appeal
in forma pauperis upon a showing of financial
necessity. See Fed. R. App. P. 24(a); Kincade v.
Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
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