United States District Court, N.D. Ohio, Eastern Division
C. Nugent, United States District Judge.
matter comes before the Court upon the Report and
Recommendation of Magistrate Judge Kathleen E. Burke (ECF No.
20). On January 3, 2018, Mr. Perez Worley filed petition for
a writ of habeas corpus under 28 U.S.C. § 2254. Mr.
Worley subsequently filed three motions in relation to his
petition for a writ of habeas corpus: Motion to Expand the
Record (ECF #19), Motion for Stay and Abeyance (ECF #20), and
Motion for Leave to Amend Petition (ECF #21). These motions
are opposed by the Respondent. ECF #22.
January 3, 2018, Mr. Worley filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. ECF #1. He asserts
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 his appellate counsel when counsel did not
present the issues of structural error and denial of due
process based on the trial court's denial of reasonable
continuance so Petitioner could retain counsel of his choice.
March 5, 2018, Mr. Worley filed a motion requesting a stay
and abeyance of his habeas corpus petition. ECF #4. Pending
review of the motion for stay. Respondent filed a Return of
Writ. ECF #12. Magistrate Judge Burke filed a Report &
Recommendation on July 11, 2018, recommending that the Court
deny Worley's motion for stay. ECF #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.
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, Magistrate Judge Burke's Court denied Worley's
First Motion for Stay. ECF #16.
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. ECF # 21. In his Motion to Expand the
Record, Worley seeks to include records that he received
through a public records request that he asserts demonstrate
that trial counsel and the state withheld exculpatory
evidence. ECF #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. ECF
Judge's Interim Report and Recommendation
reviewing the record, Magistrate Judge Burke issued her
Interim Report and Recommendation on May 30, 2019. Magistrate
Judge Burke recommended the Court should DENY Worley's
Motion for Leave to Amend Petition. ECF #21. The Magistrate
Judge asserts that Worley was aware of "newly discovered
evidence" in December 2017, yet did not seek to amend
his petition until almost a year later. Furthermore, Mr.
Worley was aware of the "newly discovered evidence"
before filing his pending habeas petition. ECF #1. For these
reasons, Magistrate Judge Burke recommends this Court DENY
Worley's Motion for Leave to Amend Petition. ECF #21.
Judge Burke also recommends the Court DENY Mr. Worley's
Second Motion for Stay. According to Rhines v.
Weber, federal district courts may not consider
unexhausted claims or "mixed petitions" containing
both exhausted and unexhausted claims. Rhines v.
Weber, 544 U.S. 266, 213-1A (2005). Rhines
asserts a stay and abeyance is only appropriate "when
the district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court." Rhines, 544 U.S. at 278. As Mr.
Worley's claim for a stay utilizes Rhines, which
addresses "mixed petitions," and Worley himself has
stated his petition is not a mixed petition, he does not
justify entitlement to a stay and abeyance under
Rhines. Further, as put forth in Rhines, a
petitioner must demonstrate good cause for his failure to
previously raise a claim in state court. Id. at 277.
However, Worley did not file a petition for post-conviction
relief until nearly one year after his acquisition of
"newly discovered" evidence. Petitioner, therefore,
was dilatory in requesting relief and did not present good
cause for granting a stay. ECF #23.
reasons stated, Magistrate Judge Burke recommended the
Petitioner's Motion for Leave to Amend Petition (ECF #21)
and Petitioner's Second Motion for Stay (ECF #20) should
of Review for a Magistrate Judge's Report and
applicable district court standard for a Magistrate
Judge's report and recommendation depends upon whether
objections were made to that report. The Advisory Committee
on Civil Rules commented on the standard of review for such
reports, stating "when no timely objection is filed, the
court need only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's notes (citations omitted). "It does not
appear that Congress intended to require district court
review of a magistrate judge's factual or legal
conclusions, under a de novo, or any other standard, when
neither party objects to those findings." Thomas v.
Arn, 474 U.S. 140, 150 (1985). Petitioner has filed no
timely objection to the Magistrate Judge's Report and
Court has reviewed the Magistrate Judge's Report and
Recommendation and, after careful evaluation of the record,
the Court finds the Magistrate Judge's Report and
Recommendation to be thorough, well-supported, and correct.
This Court ADOPTS Magistrate Judge Burke's Interim Report
and Recommendation (ECF #23). Petitioner's Motion for
Leave to .Amend Petition (ECF #21) and Petitioner's
Second Motion for Stay (ECF #20), are DENIED. This Court
ADOPTS the ...