Hoston v. Bracy

Filing 20

Memorandum and Order denying 17 Petitioner's Motion for stay and abeyance. Magistrate Judge David A. Ruiz on 1/23/2017. (G,W) Modified text on 1/25/2017 (S,HR).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL A. HOSTON,
Petitioner
v.
CHARMAINE BRACY,
Warden,
Respondent

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1:16CV1872

JUDGE JOHN R. ADAMS
(Mag. Judge David A. Ruiz)

MEMORANDUM
AND ORDER

RUIZ, MAG. JUDGE
The petitioner Michael A. Hoston (“Hoston”) has filed a petition pro se for a
writ of habeas corpus (“federal petition”), arising out of his 2015 conviction for
felonious assault in the Cuyahoga County (Ohio) Court of Common Pleas. In his
federal petition, Hoston raises four grounds for relief:
1. Petitioner was denied his rights to Due Process under the Sixth and
Fourteenth Amendments to the U.S. Constitution where there was
insufficient evidence to prove the elements of the offense in his
conviction.
2. Petitioner was denied his rights to Due Process under the Sixth and
Fourteenth Amendments to the U.S. Constitution and his right to a
fair trial when the trial court improperly provided the jury with
instruction on aiding and abetting.
3. Petitioner was denied his rights to Due Process under the Sixth and
Fourteenth Amendments to the U.S. Constitution and his right to a
fair trial when the trial court improperly provided the jury with
instruction on flight.

4. Petitioner was denied his rights to Due Process under the Sixth and
Fourteenth Amendments to the U.S. Constitution when he received
ineffective assistance of trial counsel.
(R. 1, § 12.) In addition, Hoston has filed a motion for stay and abeyance of the
federal petition. (R. 17.) He seeks a stay to exhaust claims raised in a state-court
petition for post-conviction relief, which remains pending in state court. Hoston’s
motion does not specify the claims at issue. (R. 17.)
The respondent has filed a brief in opposition arguing against the Hoston’s
motion. (R. 19.) According to respondent, Hoston’s unexhausted, post-conviction
petition raised distinct claims not included within the four claims asserted in his
federal petition. (R. 19.) In fact, the petition itself acknowledges that the federal
petition grounds are not at issue in the post-conviction petition. (R. 1, at PageID #:
4, 5, 6, 7.)
The respondent states that Hoston’s post-conviction petition raises three
claims of ineffective assistance of counsel that are distinct from the grounds of his
federal petition. (R. 19, PageID #: 576.) The fourth ground of the habeas petition is
based on ineffective assistance of trial counsel, alleging that counsel failed to object
to certain jury instructions. (R. 1, PageID #: 7.) The ineffective assistance claims
raised in his post-conviction petition are based on (1) failure to raise a defense
based on a faulty identification by one witness; (2) the issue of the victim’s
credibility; and, (3) counsel’s conflict of interest. (R. 19, PageID #: 576-577; see R.
15, RX 13, PageID #: 204, 205, 206.) An ineffective assistance claim based on a
different theory is a separate and distinct claim. See, e.g, Wong v. Money, 142 F.3d

313, 322 (6th Cir. 1998); see also Brandon v. Stone, No. 06-5284, 2007 WL 786330,
at *1 (6th Cir. March 15, 2007) (citing Williams v. Bagley, 380 F.3d 932, 969 (6th
Cir. 2004)).
Hoston’s federal petition is not a mixed petition, which would be eligible for
consideration of the stay-and-abeyance procedure. A mixed petition contains both
unexhausted and exhausted claims. Pliler v. Ford, 542 U.S. 225, 227 (2004). The
fact that Hoston has filed a separate motion or has separate claims pending in state
court does not render his current federal petition a mixed petition. Bowling v.
Haeberline, No. 03-5681, 2007 WL 2321302, at *2 (6th Ci r. Aug. 14, 2007). 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, 542 U.S. at 230. 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).
In addition, 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); 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. Hoston’s motion does not demonstrate good cause for any failure to exhaust
his remedies in state court.
The motion for stay and abeyance (R. 17) is DENIED.

IT IS SO ORDERED.
Jan. 23, 2017

/s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge