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Whitman v. Gray

United States District Court, N.D. Ohio, Eastern Division

December 27, 2019

RICHARD STANTON WHITMAN, Petitioner,
v.
DAVID W. GRAY, Warden, Respondent.

          JUDGE JAMES S. GWIN

          ORDER ON MOTION FOR STAY AND ABEYANCE OF PETITION

          THOMAS M. PARKER, UNITED STATES MAGISTRATE JUDGE

         On 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.[1] Thus, when Whitman filed his motion for stay and abeyance, this Ohio Supreme Court case (19-0331) was already resolved.

         After 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 void.
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. 9.68.
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.

         ECF 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.

         Because 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 ...


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