Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arroyo-Garcia v. Warden, Noble Correctional Institution

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 4, 2019

JOSE ARROYO-GARCIA, Petitioner,
v.
Warden, Noble Correctional Institution Respondent.

          Edmund A. Sargus, Jr. Chief Judge.

          DECISION AND ORDER DENYING MOTION FOR STAY

          Michael R. Merz, United States Magistrate Judge.

         This 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.

         A 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).

         As 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)).

         Ohio 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.

         In 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 Cir. 2011).

[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.

         Therefore, 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).

         District 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.