Jackson v. Lazaroff

Filing 10

Memorandum and Order denying Petitioner's Motion for order of stay (Related Doc # 6 ). Signed by Magistrate Judge Kenneth S. McHargh on 9/21/15. (M,De)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MAURICE JACKSON,
Petitioner
v.
ALAN J. LAZAROFF,
Warden,
Respondent

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1:15CV0253
JUDGE JAMES S. GWIN
(Magistrate Judge Kenneth S. McHargh)

MEMORANDUM AND
ORDER

McHARGH, MAG. J.
The petitioner Maurice Jackson (“Jackson”) has filed a petition for a writ of
habeas corpus through counsel, arising out of his 2000 convictions, based on a
negotiated guilty plea, for rape and kidnapping, in the Cuyahoga County (Ohio)
Court of Common Pleas. In his petition, Jackson raises two grounds for relief:
1. Mr. Jackson’s separate convictions and sentences for the charges of
rape and kidnapping violate the double jeopardy clause of the Fifth
Amendment to the United States Constitution.
2. Mr. Jackson was denied due process when the trial court did not
inform him of his direct appeal rights and his subsequent application
for leave to file a delayed appeal was denied.
(Doc. 1, § 12.)
Jackson has filed a motion to stay and abate this habeas proceedings pending
state court action. (Doc. 6.) The respondent has filed an opposition to the motion to

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stay. (Doc. 8.) The respondent has also filed a motion to dismiss, which will be
addressed separately, arguing that his petition is untimely. (Doc. 7.)

MOTION TO STAY
Jackson has filed his motion for a stay and abeyance based on exhaustion of
state claims, specifically, “a successive State post-conviction petition to be filed
arising from newly-discovered evidence,” allegedly demonstrating his innocence.
The “newly discovered evidence” is a statement from a recanting victim, Jackson’s
daughter, who was 11 years old at the time of the crime, and is now in her mid-20s.
(Doc. 6.)
The Supreme Court has explained that the “stay-and-abeyance” procedure is
used in circumstances where:
. . . a petitioner comes to federal court with a mixed petition toward the
end of the limitations period, [and] a dismissal of his mixed petition
could result in the loss of all of his claims – including those already
exhausted – because the limitations period could expire during the
time a petitioner returns to state court to exhaust his unexhausted
claims.
Pliler v. Ford, 542 U.S. 225, 230 (2004). A “mixed” petition contains both
unexhausted and exhausted claims. Pliler, 542 U.S. at 227. Jackson’s petition does
not appear to be a “mixed” petition, which would be eligible for consideration of the
“stay and abeyance” procedure.
The Supreme Court has cautioned that “stay and abeyance should be
available only in limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277 (2005);

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Wiedbrauk v. Lavigne, No. 04-1793, 2006 WL 1342309, at *5 (6th Ci r. May 17,
2006), cert. denied, 549 U.S. 961 (2006). The procedure is appropriate only when
the petitioner had good cause for a failure to exhaust. Rhines, 544 U.S. at 277.
Jackson has not demonstrated good cause for a failure to exhaust his remedies in
state court.
Jackson argues that he had good cause for his failure to present the claim
because the victim had only recently come forward. (Doc. 6, at 2.) The respondent
notes that the affidavit is dated three days before Jackson’s habeas petition was
filed. (Doc. 8, at 3; see also doc. 1.)
Jackson also claims that the “newly discovered evidence” is potentially
meritorious, and he should be permitted to present the claim in state court.1 (Doc.
6, at 2.) In opposition, the respondent points out that recantations of trial
testimony are viewed with extreme suspicion, particularly when the victim is a
family member. (Doc. 8, at 3, citing cases.) In addition, Jackson entered a plea of
guilty to the rape, and apologized for what he had done, at his plea and sentencing
hearing. (Doc. 1-7, Hearing Tr., at 17-18, 24.) The court also notes that there is
evidence in the record of Jackson having attempted to influence the testimony of the
victim. See doc. 7, RX 11, at [64]-[66].)
In any event, the fact that Jackson may raise a separate motion, or have a
separate claim pending, in state court does not render his current petition a “mixed”

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Jackson is, of course, free to attempt to present his claim in the state
courts, however this court rules as to his federal habeas petition.
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petition. Bowling v. Haeberline, No. 03-5681, 2007 WL 2321302, at *2 (6th Ci r.
Aug. 14, 2007). The court is not required to stay “a petition containing only
exhausted claims because the petitioner attempts to raise additional but
unexhausted claims during the course of the habeas corpus proceedings.” Jones v.
Parke, 734 F.2d 1142, 1145 (6th Cir. 1984).
The motion for a stay (doc. 6) is DENIED.

IT IS SO ORDERED.

Dated:

Sept. 21, 2015

/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge

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