United States District Court, N.D. Ohio, Eastern Division
JAMES S. GWIN
ORDER ON MOTION FOR STAY AND ABEYANCE OF
M. PARKER, UNITED STATES MAGISTRATE JUDGE
August 9, 2019, Petitioner Richard Stanton Whitman
(“Whitman”) moved for a stay and requested this
case be held in abeyance while he pursued his state court
remedies. Whitman represented that some of his claims were
pending in the Ohio Supreme Court in No. 19-0331. ECF Doc. 3.
However, a review of the Ohio Supreme Court's docket for
that case shows that the Ohio Supreme Court declined
jurisdiction in that case on May 1, 2019. Thus, when
Whitman filed his motion for stay and abeyance, this Ohio
Supreme Court case (19-0331) was already resolved.
Whitman filed his motion for stay and abeyance, he filed
another appeal in the Ohio Supreme Court, No. 19-1451, which
remains pending. Whitman's memorandum in support of
jurisdiction in the current Ohio Supreme Court case asserts
three propositions of law:
Proposition of Law No. 1:
Is appellant entitled to retroactive application of the
substantive new rules of criminal procedure provided in the
amended version of R.C. 2901.05 and the burden of proof
beyond a reasonable doubt being placed on the state to prove
that the accused did not use force in self-defense? Absence
of self-defense is now an element of the charge. Rendering
this conviction in violation of, In re Winship, 397
U.S. 358 and Jackson v. Virginia, 443 U.S. 307.
Violating the Fifth, Sixth and Fourteenth Amendments of the
U.S. Constitution. Thus statutorily and constitutionally
Proposition of Law No. 2:
The trial court of common pleas and appeals court of Fifth
District have violated appellant's rights to Due Process
under the Ohio Constitution Art. I, § 10, and the U.S.
Constitution's Fourteenth and Sixth Amendments by denying
the constitutionality required retroactive application of
fundamental and substantive constitutional rules of criminal
procedure within the amended version of R.C. 2901.05 and R.C.
Proposition of Law No. 3:
Given the recent ruling by this court in State v.
Parker, 2019-Ohio-3848 concerning the filings of
untimely or successive post-conviction motions to vacate void
convictions and sentences under R.C. 2953.23. What? If any
adequate state remedy is available to obtain the relief of
retroactive application of the constitutionality required
retroactive application of fundamental and substantive
constitutional rules of criminal procedure with in the
amended version of R.C. 2901.05 and 9.68. As this conviction
and sentence is now statutorily and constitutionally void.
Doc. 8 at 18. These propositions of law relate to
Whitman's Ground Nine and Ground Ten habeas claims:
GROUND NINE: Petitioner is entitled to retroactive
application to recent changes to Ohio Revised Code 2901.05
(Burden of Proof.) ECF Doc. 1 at 18.
GROUND TEN: Cumulative errors in Jury Instructions provided
at trial denied petitioner a fair trial resulting in
violation of the 6th and 14thAmendments
and Due Process. ECF Doc. 1 at 20.
some of Whitman's habeas claims are still pending before
the Ohio Supreme Court, they are not fully exhausted; and
this case involves a “mixed petition.” When a
court is presented with a mixed petition, the entire petition
may be dismissed without prejudice. See Rose v.
Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982). After a mixed petition is dismissed, and the
petitioner subsequently exhausts his state court remedies,
the petitioner may file a new habeas petition without his