United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr. Chief Judge.
DECISION AND ORDER DENYING MOTION FOR STAY
Michael R. Merz, United States Magistrate Judge.
habeas corpus case is before the Court on Petitioner's
Motion to Stay (ECF No. 14). In the Motion, Petitioner seeks
a stay so that he can exhaust state court remedies by moving
for a delayed appeal pursuant to Ohio S.Ct.Prac.R.
7.01(A)(4), of the September 27, 2016 decision of the state
court of appeals. State v. Arroyo-Garcia, 10th Dist.
No. 15AP-890, 2016-Ohio-7006.
motion to stay is a pre-trial nondispositive matter on which
a Magistrate Judge has initial decisional authority, subject
to review by the District Judge under Fed.R.Civ.P. 72(a).
Arroyo-Garcia admitted in his Traverse, he did not take an
appeal from that decision within the forty-five days allowed
for such an appeal by Ohio S.Ct.Prac.R. 7.01(A)(1) (ECF No.
7, PageID 361-62). As noted in the Report and
Recommendations, that time limit has been accepted by the
United States Court of Appeals for the Sixth Circuit as an
adequate an independent state ground of decision (ECF No. 9,
PageID 386, citing Bonilla v. Hurley, 370 F.3d 494,
497 (6thCir. 2004)).
S.Ct.Prac.R. 7.01(A)(4) does allow a motion for delayed
appeal in felony cases, so it is applicable to Petitioner.
The rule also has not absolute time limit, so petitioner is
not time-barred from seeking a delayed appeal. However, the
fact that the Supreme Court of Ohio has authority to accept a
delayed appeal does not mean that the forty-five day time
limit is not consistently enforced. The Sixth Circuit in
Bonilla already held to the contrary.
Beard v. Kindler, 558 U.S. 53, 60 (2009), the
Supreme Court held “a discretionary rule can serve as
an adequate ground to bar federal habeas review.” In
Walker v. Martin, 562 U.S. 307, 311, 316-17 (2011),
it held unanimously that a California rule that requires
state habeas to be filed “as promptly as the
circumstances allow” and without “substantial
delay, ” confers discretion but does not mean the rule
is not firmly established and regularly followed. Recognizing
the impact of these cases, the Sixth Circuit has now held
Beard and Walker, when read together,
permit a state procedural rule to serve as an adequate state
ground for preventing review of a habeas petition even if the
state rule accords courts broad discretion. As a result of
the Supreme Court's decision in Walker, Deitz
[v. Money, 391 F.3d 804 (6th Cir. 2004)]
is no longer the controlling law on this issue in our
Circuit, and a petitioner's failure to follow Ohio Rule
of Appellate Procedure 5(A) can serve as the basis for a
procedural default of a petitioner's habeas claims.
Stone v. Moore, 644 F.3d 342, 348 (6th
[A] discretionary rule can be “firmly
established” and “regularly followed”--even
if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not
others. See Meltzer, State Court Forfeitures of Federal
Rights, 99 Harv. L. Rev. 1128, 1140 (1986) (“[R]efusals
to exercise discretion do not form an important independent
category under the inadequate state ground doctrine”).
A contrary holding would pose an unnecessary dilemma for the
States: States could preserve flexibility by granting courts
discretion to excuse procedural errors, but only at the cost
of undermining the finality of state court judgments. Or
States could preserve the finality of their judgments by
withholding such discretion, but only at the cost of
precluding any flexibility in applying the rules.
Beard, 558 U.S. at 60-61.
the existence of discretion in the Supreme Court of Ohio to
allow a delayed appeal does not undermine the recommendation
in the Report and Recommendations to dismiss the First Ground
for Relief for procedural default (ECF No. 9, PageID 387).
courts have authority to grant stays in habeas corpus cases
to permit exhaustion of state court remedies in consideration
of the AEDPA's preference for state court initial
resolution of claims. ...