United States District Court, S.D. Ohio, Western Division, Cincinnati
Douglas R. Cole District Judge
DECISION AND ORDER DENYING MOTION TO STAY
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Motion for Stay (ECF No. 35).
Simmons asserts he has a delayed appeal pending in the
Supreme Court of Ohio regarding his post-conviction claims.
Id. Simmons has not furnished this Court with any of
the materials filed in the Supreme Court of Ohio.
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. However, in recognizing that authority,
the Supreme Court held:
[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).
“Staying a federal habeas petition frustrates
AEDPA's objective of encouraging finality by allowing a
petitioner to delay the resolution of federal proceedings.
Id. at 277. It also directed district courts to
place reasonable time limits on the petitioner's trip to
state court and back. Id. at 278. The Court thus
endorsed the approach that courts within this Circuit had
been following under Palmer v. Carlton, 276 F.3d 777
(6th Cir. 2002), and Hill v. Anderson,
300 F.3d 679, 683 (6th Cir. 2002).
case was filed March 24, 2016, more than three and one-half
years ago. Over the Warden's objections, the Court
already entered a stay to allow exhaustion (ECF No. 14). That
stay was in place for more than two years until the
Warden's counsel reported to the Court on November 14,
2019, that Simmons had received a decision on his last
pending matter in the Ohio Court of Appeals and had not taken
a timely appeal to the Supreme Court of Ohio (Status Report
No. 15, ECF No. 31, PageID 1923). At that point the
Magistrate Judge dissolved the stay and determined the case
would be ripe for decision as soon as the Warden had
supplemented the State Court Record with post-stay state
court papers (Order, ECF No. 32). The Warden completed that
task on December 5, 2019 (ECF No. 33).
never objected to the dissolution of the stay, and his time
to do so expired December 2, 2019. Instead, he mailed/filed
the instant Motion on December 6, 2019 (Certificate of
Service, ECF No. 35, PageID 2008).
has not shown good cause for a further stay. Examination of
the docket of the Supreme Court of Ohio in its Case No.
2019-1704 shows that on December 10, 2019, Simmons filed a
Motion for Delayed Appeal. As excuse for late filing, he
claimed he received the decision of the First District Court
of Appeals less than nine days before expiration of the
forty-five day time period for appeal. He claimed that he had
sent a Notice of Appeal on October 29 2019, but received a
response from the Supreme Court Clerk indicating they had
received his filings on November 12, 2019, and were returning
them with instructions to file a delayed appeal (Motion, p.
attached to his Motion for Delayed Appeal a copy of the First
District Court of Appeals Judgment Entry, which affirmed
denial of his petition for post-conviction relief on grounds
the Hamilton County Court of Common Pleas lacked jurisdiction
to consider it and denial of his motion for new trial because
the Common Pleas judge had not abused his or her discretion
in doing so (State v. Simmons, 1st Dist.
Hamilton No. C-180200 (Sep. 20, 2019)) (unreported; copy at
ECF No. 33, PageID 1986-88).
has pleaded seven grounds for relief in this case (Petition,
ECF No. 1, PageID 4). His bare-bones Motion for Stay does not
show this Court which if any of those grounds for relief are
at issue in his present Motion for Delayed Appeal. Nor is it
clear to this Court that the Supreme Court of Ohio could
grant a delayed appeal, which applies only to criminal cases
and not to petitions for post-conviction relief, which are
treated by the Ohio courts as civil. See, e.g., State v.
Steffen, 70 Ohio St.3d 399, 410 (1994), citing State
v. Crowder, 60 Ohio St.3d 151 (1991) (“A
postconviction proceeding is . . . a collateral civil attack
on the judgment.”); State v. Eberle,
12th Dist. Butler No. CA99-12-210, 2001 WL 88201,
at *1 (Jan. 29, 2001), citing State v. Harvey, 68
Ohio App.2d 170, paragraph three of the syllabus
(8th Dist. 1980) (“A delayed appeal pursuant
to App.R. 5(A) is not available for the appeal of
the Motion to Stay is DENIED without prejudice to its renewal
if the Supreme Court of Ohio takes jurisdiction in its Case
No. 2019-1704 and Simmons demonstrates that an issue then
pending before ...