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Worley v. Bracy

United States District Court, N.D. Ohio, Eastern Division

May 30, 2019

PEREZ WORLEY, Petitioner,
v.
CHARMAINE BRACY, WARDEN, Respondent.

          DONALD C. NUGENT JUDGE.

          INTERIM REPORT & RECOMMENDATION (DOCS. 20 & 21) AND ORDER (DOC. 19)

          Kathleen B. Burke United States Magistrate Judge.

         I. Introduction

         Petitioner 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.

         This 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).

         II. Background

         Worley 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.[1] 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.

         In his 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.

         In his 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. Doc. 16.

         In his 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. Doc. 20.

         III. Law & Analysis

         A state 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. § 2244(d)(1)(A).

         Rhines 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.

         Worley 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 ...


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