Krutsinger v. Clements et al

Filing 9

ORDER FOR STAY AND FOR STATUS REPORT. Granting 2 Motion. Further proceedings in this civil action are stayed until further order of court and the petitioner is directed to file a status report, advising of the trial Court's ruling on the Rule 35(c) motion when that occurs, by Judge Richard P. Matsch on 5/7/2012.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-02963-RPM
CHARLES M. KRUTSINGER,
Petitioner,
v.
TOM CLEMENTS, Executive Director, Colorado Department of Corrections, and
JOHN W. SUTHERS, Attorney General, State of Colorado,
Respondents.
_____________________________________________________________________
ORDER FOR STAY AND FOR STATUS REPORT
_____________________________________________________________________
The Petitioner’s Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 presents four claims of constitutional error in the trial proceedings leading to his
conviction and sentence. Two of those claims have been exhausted in post-conviction
proceedings in the Colorado courts. A claim for ineffective assistance of counsel has
not been exhausted and there is some question with respect to procedural default as to
cumulative prosecutorial misconduct during closing arguments. Charles M. Krutsinger
was released from state custody upon completion of his sentence shortly after the filing
of his petition in this court. Because of the mixture of exhausted and unexhausted
claims, the petitioner filed a motion to stay and abate this proceeding, recognizing that if
this Court proceeds on the exhausted claims and dismisses the claims that have not
been exhausted, the petitioner may lose an opportunity for federal review by another
petition filed when he is no longer in custody.

The respondents object to the motion to stay and abate. The petitioner has filed
a Colo.Crim.P. 35(c) motion with a state trial court and has been granted an evidentiary
hearing. The respondents have noted that the motion was filed on May 23, 2011,
suggesting that the timing was purposeful to avoid any jurisdictional issue for his petition
in this court.
The respondents are concerned about an indefinite stay to permit full exhaustion
of the claims that are now before the state court. In considering whether to exercise the
discretion in this situation, it will be of assistance to learn the result of the motion
pending before the state trial court. Accordingly, it is now
ORDERED that further proceedings in this civil action are stayed until further
order of court and the petitioner is directed to file a status report, advising of the trial
court’s ruling on the Rule 35(c) motion when that occurs.
DATED:

May 7th, 2012
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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