United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
ORDER STAYING CASE PENDING EXHAUSTION
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Respondent's Answer to Writ (ECF No. 15).
Therein Respondent raises the defense that Petitioner has not
exhausted available state court remedies and asks that the
case be dismissed on that basis. Id. at PageID 191.
Although Petitioner had not filed an appeal at the time he
filed the Petition, Respondent notes that he did so on June
27, 2019. Id. The Court has confirmed the existence
of that appeal under Case No. 2019 CA 00019. As of the date
of this Order, no decision has been docketed. Of course, even
if Petitioner is unsuccessful on in the Ohio Court of
Appeals, he will have the right to appeal to the Supreme
Court of Ohio from any adverse decision.
Rose v. Lundy, 455 U.S. 509 (1982), the Supreme
Court held that a “mixed” habeas petition
containing both exhausted and unexhausted claims must be
dismissed; accord, Pilette v. Foltz, 824 F.2d 494
(6th Cir. 1987). That did not present a barrier to
eventual federal habeas corpus relief until Congress adopted
the Antiterrorism and Effective Death Penalty Act of 1996
(Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")
in 1996 which made habeas corpus petitions subject to a
one-year statute of limitations such that if a mixed petition
was dismissed, the statute of limitations might run. To deal
with that problem, the Supreme Court has allowed District
Court to stay habeas cases pending exhaustion. However, it
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, 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. 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. Cf. 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion
for a district court to deny a stay and to dismiss a mixed
petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005).
Magistrate Judge is not advised of what claims Petitioner has
raised on appeal, but it seems likely they include some or
all of the claims he has raised here. Failure to raise claims
on direct appeal or otherwise in the state courts can result
in their forfeiture in habeas under the doctrine of
procedural default. Until provided proof to the contrary, the
Magistrate Judge will assume that there is at least some
overlap in the claims made on appeal and here.
prisoner seeking federal habeas corpus relief must first
exhaust the remedies available to him in the state courts. 28
U.S.C. § 2254(b) and (c); Picard v. Connor, 404
U.S. 270, 275 (1971).
Ohio, this includes direct and delayed appeal to the Ohio
Court of Appeals and the Ohio Supreme Court. Mackey v.
Koloski, 413 F.2d 1019 (6th Cir. 1969);
Allen v. Perini, 424 F.2d 134, 140 (6th
Cir. 1970). It also includes the remedy of a petition for
post-conviction relief under Ohio Revised Code §
2953.21. Manning v. Alexander, 912 F.2d 878
(6th Cir. 1990).
these habeas corpus proceedings are STAYED pending the
outcome of Petitioner's current appeal to the Ohio Court
of Appeals and any further appeal to the Supreme Court of
Ohio. The parties are ordered to keep the Court currently
advised of the status of the Ohio court proceedings. Should
the trial be transcribed for purposes of the appeal,
Respondent is ordered to file a copy with this Court.
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