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Zeigler v. Warden, Lebanon Correctional Institution

United States District Court, S.D. Ohio, Western Division

August 5, 2019

SEAN ZEIGLER, Petitioner,
v.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

          Barrett, J.

          ORDER AND REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge.

         Petitioner, a prisoner at the Lebanon Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's motion for stay and abeyance (Doc. 8), motion to strike motion for stay and abeyance (Doc. 11), and motion for leave to file an amendment to his petition (Doc. 12). For the reasons stated below, petitioner's motion to amend is granted, his motion to strike is denied, and the undersigned recommends that petitioner's motion to stay be granted.

         In the petition, petitioner challenges his Hamilton County, Ohio convictions for aggravated burglary, rape, felonious assault, and tampering with evidence. Petitioner raises the following four grounds for relief in the petition:

GROUND ONE: The trial court committed reversible error in denying petitioner's suppression of the DNA evidence because his consent was coerced rendering it involuntary because after he requested an attorney, the officers made forceful statements that left the petitioner to believe it would be fruitless to refuse consent which violated petitioner's Fourth, Fifth and Fourteenth Amendment rights.
GROUND TWO: Petitioner was denied a fair trial when due process under the Fifth and Fourteenth Amendment were violated due to prosecutor and witness misconduct when the serologist gave false testimony about the source of the DNA in her report and the prosecutor relied on the false testimony during examination and closing arguments.
GROUND THREE: Trial counsel rendered ineffective assistance violating petitioner's Sixth Amendment right for failing to rebut forensic evidence of rape in allowing false testimony by the serologist that contradicted her lab report to go unquestioned and unchallenged.
GROUND FOUR: Appellate counsel was ineffective violating petitioner's Sixth Amendment right for failing to raise winning issues in my direct appeal, but for appellate counsel's unreasonable and unjustifiable errors, the appeal would have resulted in a different outcome.

(Doc. 1). On December 18, 2018, respondent filed a return of writ in opposition to the petition. (Doc. 6). According to respondent, petitioner's grounds for relief are procedurally defaulted, non-cognizable, and without merit.

         On January 8, 2019, petitioner filed a motion to stay this action while he pursues a petition for post-conviction relief in the trial court. (Doc. 8). In the post-conviction petition, which remains pending in the Ohio trial court, petitioner raises two claims of ineffective assistance of trial counsel. First, petitioner claims that his trial counsel was ineffective for failing to investigate and present letters from Raymond Lear-a fellow prisoner and the boyfriend of the victim in petitioner's case-which he claims are exculpatory.[1] Petitioner also claims counsel was ineffective for failing to investigate issues related to his detention during police interrogation. According to petitioner, he was prevented from raising these claims earlier because he was not provided with the Lear letters from trial counsel until after he filed his habeas corpus petition. Petitioner claims that he only obtained the letters after petitioner pursued a grievance against his trial counsel and counsel was compelled to provide them to him.

         Respondent has filed a response in opposition to petitioner's motion. Respondent argues that staying this action is not appropriate because petitioner has not raised the claims asserted in his post-conviction petition as grounds for relief in this action. Respondent further contends that petitioner failed to demonstrate that the claims are potentially meritorious. (Doc. 10).

         Apparently in response to respondent's opposition, petitioner subsequently filed a motion to strike his motion to stay (Doc. 11) and a motion for leave to file an amendment to his habeas petition. (Doc. 12). Petitioner notes in his motion to strike that he filed the stay motion prematurely, before he had the opportunity to file a motion to amend the petition. Petitioner indicates that he intends to refile the motion to stay after the Court has ruled on his motion to amend.

         In the motion to amend, petitioner seeks to add the following two ...


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