United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE.
INTERIM REPORT & RECOMMENDATION (DOCS. 20 &
21) AND ORDER (DOC. 19)
Kathleen B. Burke United States Magistrate Judge.
Perez Worley (“Petitioner” or
“Worley”) has filed three motions: Motion to
Expand the Record (Doc. 19), Motion for Stay and Abeyance
(Doc. 20) (“Second Motion for Stay”), and Motion
for Leave to Amend Petition (Doc. 21). Respondent opposes
Worley's motions. Doc. 22.
matter has been automatically referred to the undersigned
Magistrate Judge pursuant to Local Rule 72.2. For the reasons
set forth herein, the undersigned recommends that the Court
DENY Worley's Motion for Leave to Amend
Petition (Doc. 21) and DENY Worley's
Second Motion for Stay (Doc. 20). Additionally, in light of
these recommendation, the undersigned DENIES
Worley's Motion to Expand the Record (Doc. 19).
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254 (“Petition”). Doc. 1. His petition is
deemed filed on January 3, 2018, the date he placed it in the
prison mailing system. Doc. 1, p. 13. Subsequently, on March 5,
2018, Worley filed a motion requesting a stay and abeyance of
his habeas corpus petition (“First Motion for
Stay”). Doc. 4. On June 27, 2018, while Worley's
First Motion for Stay was under review, Respondent filed her
Return of Writ. Doc. 12. On July 11, 2018, the undersigned
filed a Report & Recommendation, recommending that the
Court deny Worley's First Motion for Stay. Doc. 13. On
September 17, 2018, the Court adopted the Report &
Recommendation and denied Worley's First Motion for Stay.
Doc. 16. Following the Court's denial of Worley's
First Motion for Stay, the undersigned ordered that, if
Worley intended to file a Traverse to the Return of Writ,
that said Traverse should be filed by October 31, 2018.
See September 18, 2018, non-document order. Worley
sought and received an extension of time to file his Traverse
by December 15, 2015. Doc. 18 & October 23, 2018,
non-document order. However, rather than file a Traverse,
Worley filed the three pending motions. Docs. 19, 20, 21.
Petition, Worley indicates that, on April 1, 2015, a jury
convicted him of aggravated murder with a firearm, improperly
handling a firearm in a motor vehicle, and having weapons
under disability. Doc. 1, p. 1. In his Petition, Worley
raises the following six grounds for relief: 1) the
state's evidence was insufficient to support
Petitioner's convictions; 2) Petitioner was deprived of
the effective assistance of counsel at trial; 3) the trial
court erred to Petitioner's prejudice when it admitted
other acts evidence; 4) Petitioner's right to due process
was violated when his motion for reopening was denied on
frivolous and inapplicable grounds; 5) Petitioner was denied
the effective assistance of counsel when his appellate
counsel failed to present the issue of prosecutorial
misconduct; and 6) Petitioner was denied the effective
assistance of counsel when his appellate counsel failed to
present the issues of structural error and denial of due
process based on the trial court's denial of a reasonable
continuance so Petitioner could retain counsel of his choice.
Doc. 1, pp. 4-9.
First Motion for Stay, Worley sought a stay pending
resolution of his state court mandamus action relating to his
claim that he never received a final appealable order from
the state trial court and sought to compel the trial court to
impose PRC on two counts of his original sentence. Doc. Doc.
4, Doc. 9, p. 3, Doc. 12-1, pp. 286-97 (Exhibit 37). As noted
above, this Court denied Worley's First Motion for Stay.
Motion for Leave to Amend his Petition, Worley seeks to add
two new grounds for relief: 1) ineffective assistance of
trial counsel; and 2) a claim that the state withheld
exculpatory evidence. Doc. 21. In his Motion to Expand the
Record, Worley seeks to expand the record to include records
that he received through a public records request that he
asserts demonstrate that trial counsel and the state withheld
exculpatory evidence. Doc. 19. In his Second Motion for Stay,
Worley requests that this Court stay this habeas proceeding
to allow him to pursue a post-conviction petition in state
court wherein he contends he has asserted the claims he seeks
to add as new grounds for relief in this habeas proceeding.
Law & Analysis
prisoner with federal constitutional claims must fairly
present those claims in state court before raising them in a
federal habeas corpus action. 28 U.S.C. § 2254(b) (1),
(c). See O'Sullivan v. Boerckel, 526 U.S. 838
(1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990). Federal district courts may not consider
unexhausted claims or “mixed petitions, ” i.e., a
petition containing both exhausted and unexhausted claims.
Rhines v. Weber, 544 U.S. 269, 273- 74 (2005).
Petitioners have one year from the end of direct review of
their conviction to bring a habeas petition. 28 U.S.C. §
gave district courts discretion to stay a mixed petition so
that a petitioner can return to state court with unexhausted
claims and not be prejudiced by the statute of limitations
running out on the exhausted claims. Rhines, 544
U.S. at 275-76. However, the Court noted that
“[s]taying a federal habeas petition frustrates
AEDPA's objective of encouraging finality by allowing a
petitioner to delay the resolution of the federal proceedings
[and] . . . undermines AEDPA's goal of streamlining
federal habeas proceedings by decreasing a petitioner's
incentive to exhaust all his claims in state court prior to
filing his habeas petition.” Rhines, 544 U.S.
at 277. Therefore, stay and abeyance is only appropriate in
limited instances such as “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.” Rhines, 544 U.S. at 278.
Additionally, courts should not grant a stay where the
petitioner engages in “abusive litigation tactics or
intentional delay[.]” Id.
has previously stated that his Petition is not a mixed
petition. See Doc. 4, p. 2 (“[t]he petition
here is not a ‘mixed petition'”). Thus, since
Rhines addresses “mixed petitions, ”
stay and abeyance under Rhines would not apply to
Worley's currently filed Petition. Assuming arguendo that
the Court considered Worley's ...