Williams v. Smith

Filing 13

Memorandum Opinion and Order declining to adopt 10 Report and Recommendation as written and dismissing the petition w/out prejudice. Judge Donald C. Nugent (C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL WILLIAMS
Petitioner,
v.
KEITH SMITH, Warden,
Respondent.

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CASE NO. 1: 14 CV 468
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER

This matter comes before the Court upon the Report and Recommendation of Magistrate
Judge Kathleen B. Burke, addressing Petitioner’s request for a writ of habeus corpus. (ECF
#10). Respondent timely filed objections to the Report and Recommendation. (ECF # 11).
The Court has reviewed de novo those portions of the Magistrate Judge’s Report and
Recommendation to which objection has been made. See FED. R. CIV. P. 72(b).
Magistrate Burke found that the habeas corpus action brought by Mr. Williams pursuant
to 28 U.S.C. § 2254 included unexhausted claims and should be considered a mixed petition
under the case law. Magistrate Burke’s Report and Recommendation also found that Mr.
Williams provided no argument that would support the issuance of a stay in lieu of dismissal
under the circumstances. The Court agrees with these specific findings, but declines to adopt
the Report and Recommendation (ECF #10) as written. All parties agree that Petitioner’s

third claim has not been exhausted. Further as set forth in Respondent’s Objections, it
appears that there may also remain unexhausted issues under claim two of the petition.
Pursuant to 28 U.S.C. § 2254(b)(1), (c), a Court shall not consider an application for writ of
habeus corpus when the applicant has not exhausted all available state court remedies.
As indicated in the Report and Recommendation, when a petitioner fails to exhaust
available state remedies, the entire petition may be dismissed without prejudice, or under
certain limited circumstances, a court may grant a stay to allow petitioner to exhaust state
court remedies. (ECF #10, at 7, citing Rhines v. Weber, 544 U.S. 269, 277 (2005)). A “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.” Id. As set forth above, the
Court adopts Magistrate Burkes’ finding that Petition has set forth no argument to support the
issuance of a stay. There were no objections to this portion of the Report and
Recommendation.
Therefore, as the Petition at issue includes unexhausted claims, and as there has been no
showing or argument made by Petitioner that is sufficient to support the issuance of a stay, the
Court hereby dismisses the Petition without prejudice. IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED: January 9, 2015