Berry v. Jones

Filing 23

Memorandum and Order Denying Petitioner's Motion to stay (Related Doc # 21 ). Signed by Magistrate Judge Kenneth S. McHargh on 10/28/15. (M,De)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONNY L. BERRY,
Petitioner
v.
WARDEN, Southern Ohio
Corr. Facility,
Respondent

)
)
)
)
)
)
)
)
)
)
)

3:14CV2518
JUDGE CHRISTOPHER BOYKO
(Magistrate Judge Kenneth S. McHargh)

MEMORANDUM AND
ORDER

McHARGH, MAG. J.
The petitioner Donny L. Berry (“Berry”) has filed a petition through counsel
for a writ of habeas corpus, arising out of his 2011 convictions for aggravated
murder; involuntary manslaughter; conspiracy to traffic cocaine, and marijuana;
and tampering with evidence, in the Defiance County (Ohio) Court of Common
Pleas. In his petition, Berry raises eleven grounds for relief:
1. The state court’s determination that appellant was not denied the
effective assistance of appellate counsel when counsel failed to raise on
appeal various meritorious issues violating appellant’s Sixth
Amendment right to the effective assistance of counsel as guaranteed
by the United States Constitution was contrary to or an unreasonable
application of federal law and Strickland v. Washington which resulted
in a decision that was based on an unreasonable determination of the
facts.
2. The trial court erred and abused its discretion in denying
appellant’s motion to dismiss and or suppress as statements were
obtained from appellant on April 15th, 2011, were obtained in violation
of appellant’s Fifth Amendment right against self-incrimination and is
1

contrary to or an unreasonable application [of] Miranda v. Arizona and
its [progeny].
3. The trial court erred and abused its discretion erred in denying
appellant’s motion to dismiss and or suppress as statements were
obtained from appellant on April 15th, 2011, were obtained in violation
of appellant’s Sixth Amendment right to counsel as guaranteed by the
United States Constitution and is contrary to or an unreasonable
application of McNeil v. Wisconsin.
4. The petitioner[’s] Fifth, Sixth, and Fourteenth Amendment rights
as guaranteed by the United States Constitution were violated by the
state agents knowingly circumventing petitioner[’s] right to counsel
and using illegally obtained incriminating statements against
petitioner at trial. This was contrary to [or] an unreasonable
application of Maine v. Moulton and its progeny.
5. Petitioner was deprived of his Fifth and Fourteenth Amendment
right to due process of law and of his Sixth Amendment right as
guaranteed by the United States Constitution to [an] impartial jury
due to a jury member of his jury failing to disclose material
information during jury voir dire. The court’s decision was contrary to
or an unreasonable application of clearly establish[ed] federal law.
6. Petitioner was deprived of his Sixth Amendment right to effective
assistance of counsel as guaranteed by the United States Constitution
due to appointed counsel[’s] failure to present exculpatory evidence,
impeach key witnesses, subpoena crucial witnesses, improper
inducement of a guilty plea, and [inadequate] representation before
during and after petitioner[’s] trial, filing frivolous motions which
prejudiced the petitioner[’s] right to a speedy trial, failure to object to
the hearsay testimony of Doug Engel, Dave Richardson, and Tobey
Delaney, which was contrary to clearly establish[ed] federal law and or
an unreasonable application of Strickland v. Washington.
7. Petitioner was deprived of his Fifth and Fourteenth Amendment
right[s] as guaranteed by the United States Constitution due to the
trial court denying the petitioner access to funds needed to hire
forensic analyst for the preparation and presentation of petitioner[’s]
defense and is contrary to clearly establish[ed] federal law or an
unreasonable application of Ake v. Oklahoma and its progeny and
clearly establish[ed] federal law.

2

8. Petitioner was deprived of his Fifth and Fourteenth Amendment
rights as guaranteed by the United States Constitution due to the
prosecution eliciting perjured testimony from a state witness (Shannon
Wilson) during petitioner[’s] trial violating the petitioner[’s] right to
due process of law as guaranteed by Fifth and Fourteenth Amendment.
The court’s decision was contrary to and [an] unreasonable application
of clearly established federal law.
9. The petitioner[’s] Fifth, Sixth, and Fourteenth Amendment rights
as guaranteed by the United States Constitution were violated due to
police conducting a custodial interrogation after petitioner invoked his
right to counsel present during custodial interrogation and the trial
court finding that petitioner[’s] [waiver] of this Fifth and Sixth
Amendment rights were valid based on the fact that petitioner was
read his Miranda rights. The court’s decision was contrary to clearly
establish[ed] federal law and or [an] unreasonable application of
Maryland v. Shatzer.
10. The state court’s determination in denying defendant/appellant’[s]
motion for acquittal and the evidence was insufficient to support the
jury’s conviction of Defendant/Appellant for the crime of aggravated
murder, in violation of [Ohio Rev. Code §] 2903.01, Count I of the
indictment depriving the petitioner of his Fifth and Fourteenth
Amendment right to due process of law.
11. Petitioner was [deprived] of his Fifth and Fourteenth Amendment
rights as guaranteed by the United States Constitution to due process
of law due to the prosecution[’s] failure to disclose material evidence to
the petitioner[’s] appointed counsel upon request prior to trial which
was contrary to clearly establish[ed] federal law or an unreasonable
application of Maryland v. Brady.
(Doc. 1, § 12.)
The respondent has filed a Return of Writ (doc. 14), and Berry has filed a
Traverse (doc. 18).
Currently before the court is Berry’s motion to stay and hold the proceedings
in abeyance. (Doc. 21.) The respondent has filed an opposition. (Doc. 22.)

3

I. FACTUAL AND PROCEDURAL BACKGROUND
After a jury trial, Berry was convicted of aggravated murder; involuntary
manslaughter; conspiracy to traffic cocaine, and marijuana; and tampering with
evidence, in the Defiance County (Ohio) Court of Common Pleas. (Doc. 14, RX 12.)
Berry was sentenced to serve an aggregate sentence of thirty years to life on
January 3, 2012. (Doc. 14, RX 15.)
A. Direct Appeal
Berry timely appealed his conviction and sentence. On direct appeal, Berry
raised three assignments of error:
1. The trial court erred in denying defendant/appellant’s motion for
acquittal and the evidence was insufficient to support the jury’s
conviction of defendant/appellant for the crime of aggravated murder,
in violation of [Ohio Rev. Code §] 2903.01, Count I of the indictment.
2. The jury’s verdict finding defendant/appellant, guilty beyond a
reasonable doubt of the crime of aggravated murder, in violation of
[Ohio Rev. Code §] 2903.01, Count I of the indictment, is against the
manifest weight of the evidence.
3. Defendant/appellant was denied a fair trial due to the ineffective
assistance of counsel.
(Doc. 14, RX 17.) The court of appeals affirmed the judgment of the trial court.
(Doc. 14, RX 20; State v. Berry, No. 4-12-03, 2013 WL 2638704 (Ohio Ct. App. June
10, 2013).)
Berry appealed that judgment to the Supreme Court of Ohio, asserting the
following propositions of law:
1. The trial court erred in denying Defendant/Appellant’s motion for
Acquittal and the evidence was insufficient to support the jury’s
4

conviction of Defendant/Appellant for the crime of Aggravated
Murder, in violation of [Ohio Rev. Code §] 2903.01, Count I of the
indictment.
2. The Jury’s verdict finding Defendant/Appellant, guilty beyond a
reasonable doubt of the crime of Aggravated Murder, in violation of
[Ohio Rev. Code §] 2903.01, Count I of the indictment, is against the
manifest weight of the evidence.
3. Defendant Appellant was denied a fair trial due to the ineffective
assistance of trial counsel.
(Doc. 14, RX 22.) The state high court declined jurisdiction on Nov. 20, 2013. (Doc.
14, RX 23.)
B. Petition for Post-Conviction Relief
On Feb. 22, 2013, Berry filed a post-conviction petition, with the following
eight grounds for relief:
1. Petitioner[’s] April 15th, 2011, statement to the Defiance County
Sheriffs that was admitted into evidence against the petitioner at trial
was obtained in violation of the petitioner[’s] Fifth, Sixth, and
Fourteenth Amendment rights as guaranteed by the United States
Constitution and should have been excluded as derivative evidence.
2. Petitioner[’s] Fifth, Sixth, and Fourteenth Amendment rights as
guaranteed by the Constitution of the United States of America were
violated due to police conducting a custodial interrogation after
petitioner invoked his right to counsel present during custodial
interrogation and the trial court finding that petitioner[’s] [waiver] of
his Fifth and Sixth Amendment rights were valid based on the fact
that petitioner was read his Miranda rights.
3. Petitioner[’s] Fifth, Sixth, and Fourteenth Amendment rights as
guaranteed by the Constitution of the United States of America were
violated by the state agents knowingly circumventing petitioner[’s]
right to counsel and using illegally obtained incriminating statements
against petitioner at trial.

5

4. Petitioner was deprived of his Fifth and Fourteenth Amendment
rights to due process as guaranteed by the Constitution of the United
States of America due to the prosecution eliciting perjured testimony
from a state witness during petitioner[’s] trial.
5. Petitioner was deprived of his Fifth and Fourteenth Amendment
rights as guaranteed by the Constitution of the United States of
America to due process of law due to the trial court denying the
petitioner access to funds needed to hire forensic analyst for the
preparation and presentation of his defense.
6. Petitioner was deprived of his Sixth Amendment right to effective
assistance of counsel as guaranteed by the Constitution of the United
States of America due to appointed counsel[’s] failure to present
exculpatory evidence, impeach key witnesses, subpoena crucial
witnesses, improper inducement of a guilty plea, failure to file motion
to suppress phone records, and [inadequate] representation before
during and after petitioner[’s] trial.
7. Petitioner was deprived of his Fifth and Fourteenth Amendment
right[s] as guaranteed by the Constitution of the United States of
America to due process of law due to the prosecution failing to disclose
material evidence to the petitioner[’s] appointed counsel upon request
prior to trial.
8. Petitioner was deprived of his Sixth Amendment right as
guaranteed by the Constitution of the United States of America to [an]
impartial jury due to a member of his jury failing to disclose material
information during jury voir dire.
(Doc. 14, RX 24.) The trial court granted the state’s motion to dismiss, on the basis
of res judicata. (Doc. 14, RX 27.)
Berry appealed the trial court’s ruling, and set forth two assignments of error
for the court of appeals:
1. The trial court erred and prejudice[d] the Defendant-Appellant by
denying the Appellant[’s] petition for post-conviction relief without
holding an evidentiary hearing.

6

2. The trial court erred by finding that the Appellant did not state any
substantial grounds for relief in this petition for post conviction relief.
(Doc. 14, RX 29.) On Feb. 3, 2104, the court of appeals affirmed the judgment of the
trial court. (Doc. 14, RX 32.)
Berry appealed that judgment to the Supreme Court of Ohio, setting forth the
following ten propositions of law:
1. The trial court erred and prejudice[d] the Defendant-Appellant by
denying the Appellant[’s] petition for post-conviction relief without
holding [an] evidentiary hearing.
2. The trial court erred by finding that the Appellant did not state any
substantial grounds for relief in his petition for post-conviction relief.
3. Appellant[’s] April 15th 2011 statement to the Defiance County
Sheriffs that was admitted into evidence against Donny Berry at trial
was obtained in violation of the Appellants Fifth, Sixth and Fourteenth
Amendment rights as guaranteed by the United States Constitution
and should have been excluded as derivative evidence.
4. Appellant[’s] fifth Sixth and Fourteenth Amendment rights as
guaranteed by the constitution of the United States of America were
violated due to police conducting a custodial interrogation after
Appellant invoked his right to counsel presents during custodial
interrogation and the trial court finding that Appellant[’s] waiver of
his fifth and Sixth Amendment rights was valid based on the fact
appellant was read his rights.
5. Appellant[’s] Fifth Sixth and Fourteenth Amendment rights as
guaranteed by the constitution of the United States of America were
violated by the state agents knowingly circumventing appellants right
to counsel and used illegally obtained incriminating statements
against appellant at trial.
6. Appellant was deprived of his Fifth and Fourteenth Amendment
rights to due process of law as guaranteed by the constitution of the
United States of America due to the prosecution eliciting perjured
testimony from a state witness during appellants trial.

7

7. Appellant was deprived of his Fifth Sixth and Fourteenth
Amendment rights as guaranteed by the constitution of the United
States of America due to the trial court denying the Appellant access to
funds needed to hire forensic Analyst for preparation and presentation
of his defense.
8. Appellant was deprived of his Sixth Amendment right as
guaranteed by the constitution of the United States of America to [an]
impartial Jury due to a member of his Jury failing to disclose material
information during Jury voir dire.
9. Appellant was deprived of his Sixth Amendment right to effective
Assistance of counsel as guaranteed by the constitution of the United
States of America due to appointed counsel[’s] failure to present
exculpatory evidence, impeach key witnesses, subpoena crucial
witnesses, improper inducement of a guilty plea, failure to file motion
to suppress phone records and inadequate representation before during
and after appellant[’s] trial.
10. Appellant was deprived of his Fifth and Fourteenth Amendment
right[s] as guaranteed by the constitution of the United States of
America due to the prosecution failing to disclose material evidence to
the appellants appointed counsel upon request prior to trial.
(Doc. 14, RX 34.)
The state high court declined jurisdiction on June 11, 2014. (Doc. 14, RX 35.)

C. Rule 26(B) Application
On Aug. 20, 2013, while his direct appeal and the appeal of his postconviction petition were pending, Berry filed a Rule 26(B) application to reopen,
based on ineffective assistance of appellate counsel. Berry would have raised the
following five assignments of error:
1. The trial court erred and abused its discretion in denying Berry’s
motion to dismiss and/or suppress as statements obtained from Berry

8

on April 15th, 2011, were obtained in violation of Berry’s Fifth
Amendment right against self-incrimination.
2. The trial court erred and abused its discretion in denying Berry’s
motion to dismiss and/or suppress as statements were obtained from
Berry on April 15th, 2011, in violation of Berry’s Sixth Amendment
right to counsel.
3. The trial court committed reversible error by denying the
appellant[’s] motion for funds to hire a forensic Analyst.
4. The state failed to allege venue in counts 2 through 8 of petitioner’s
indictment.
5. Appellant was egregiously victimized by the ineffective assignment
of his counsel when he failed to raise on appeal the various meritorious
issues indicated in this application for reopening.
(Doc. 14, RX 36.) On Nov. 25, 2013, the court of appeals denied the application.
(Doc. 14, RX 37.)
Berry appealed that denial to the Supreme Court of Ohio, setting forth as
propositions of law the same five claims that he raised in his Rule 26(B) application.
(Doc. 14, RX 39.) The state high court declined jurisdiction on March 12, 2014.
(Doc. 14, RX 40.)

II. MOTION TO STAY
Berry moves to stay the current action “until the State Court rules upon a
petition to vacate filed by the petitioner pursuant to [Ohio Rev. Code] § 2953.23.”
(Doc. 21, at 1.) Berry says that the state petition relates to the fifth ground of the
habeas petition before this court. Id.

9

Berry filed his petition for a writ of habeas corpus in this court on Nov. 14,
2014. (Doc. 1.) The fifth ground of his federal habeas petition is:
Petitioner was deprived of his Fifth and Fourteenth Amendment right
to due process of law and of his Sixth Amendment right as guaranteed
by the United States Constitution to [an] impartial jury due to a jury
member of his jury failing to disclose material information during jury
voir dire. The court’s decision was contrary to or an unreasonable
application of clearly establish[ed] federal law.
(Doc. 1, § 12.)
Almost seven months after filing his federal habeas petition, Berry filed a
“Successive Petition for Post Conviction Petition Relief, Pursuant to Ohio Rev. Code
§ 2953.23,” in the state trial court, on June 4, 2015. (Doc. 21, PX 1.) The petition
states that the ground for relief is:
Petitioner was deprived of his Sixth Amendment right as guaranteed
by the Constitution of the United States of America to a trial by an
impartial jury due to jury member Erika Bucholz failing to disclose
material information during voir dire.
(Doc. 21, PX 1, at 2.) The state petition alleges Berry was “unavoidably prevented”
from timely filing such a petition, because he did not possess the information he
now has, supported by an affidavit. (Doc. 21, PX 1, at 1-2.)
The affidavit in question avers that affiant Veronica Aguilar attended the
same junior high school as the juror and Donny Berry. Aguilar avers that juror
Bucholz attended the school at the time that Berry was convicted for setting a fire
at the school. Aguilar states that she was asked to provide such an affidavit “on
numerous occasions . . . over the past three years,” by “individuals whom I do not
know.” She had been reluctant to provide the affidavit previously due to concerns
10

about her personal safety, but now felt the danger had subsided. (Doc. 21, PX 2,
Aguilar aff., signed May 8, 2015.)
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. 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 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.
The first question before this court, then, is whether the habeas petition at
bar is a “mixed” petition, specifically, whether the fifth ground of the petition should
be considered unexhausted.

11

Berry raised the fifth ground of his federal habeas petition (member of jury
failing to disclose material information during voir dire) in state court. The eighth
ground of Berry’s Feb. 22, 2013, post-conviction petition was: “Petitioner was
deprived of his Sixth Amendment right as guaranteed by the Constitution of the
United States of America to [an] impartial jury due to a member of his jury failing
to disclose material information during jury voir dire.” (Doc. 14, RX 24.) The 2013
state petition stated that Berry “was made aware of the relationship between the
juror and himself after trial by a friend of the juror (Veronica Aguilar).” (Doc. 14,
RX 24, at [29].) The trial court granted the state’s motion to dismiss, on the basis of
res judicata, because every one of the claims could have been raised at trial or on
direct appeal. The court also noted that Berry had failed to provide any evidentiary
support for his claim. (Doc. 14, RX 27.)
Berry pursued this claim in his appeal of the trial court’s denial of his 2013
post-conviction petition. The court of appeals affirmed the lower court, and stated
that “a defendant has not set forth substantive grounds when the petition for postconviction relief claims a juror was biased, but the record does not state with
specificity how the bias affected the juror.” (Doc. 14, RX 32, at 8.) The court noted
that Berry did not attach anything to his petition would indicate that the juror
knew that Berry was the person responsible to setting a fire at their school (which
caused substantial damage, allegedly including to the contents of the juror’s locker).
Id. The court noted Berry only provided a self-serving affidavit, and found that the

12

trial court did not abuse its discretion in denying his petition without any
evidentiary hearing. Id. at 8-9.
The court of appeals also found that res judicata would bar this claim,
because Berry could have informed his counsel as to his conviction for setting the
fire at the school, which would have allowed counsel to explore the issue further
with the juror, if they chose to do so. The court found that this was an issue which
could have been raised at trial, thus was properly barred by res judicata. (Doc. 14,
RX 32, at 9 n.5.) Berry unsuccessfully raised the claim yet again in his appeal of
the appellate court’s ruling to the state supreme court. (Doc. 14, RX 34.)
In his motion to stay, Berry argues that the factual basis of his claim was not
developed in state court. (Doc. 21, at 5.) The warden responds that the Aguilar
affidavit attached to the June 2015 state post-conviction petition adds nothing to
the record, and does not establish that the juror failed to disclose material
information during voir dire, as alleged by the fifth ground of the habeas petition.
(Doc. 22, at 3-4.)
As noted above, Aguilar avers in her affidavit that the juror and Bucholz
attended the same junior high school (at the time that Berry was convicted for
setting a fire at the school). Aguilar does not state whether Bucholz has any
specific memory of the fire incident, whether Bucholz had any awareness that the
fire was intentionally set (rather than an accident), or whether Bucholz had any
knowledge that Berry was arrested or convicted for it. (Doc. 21, PX 2, Aguilar aff.)

13

The respondent contends that the juror never failed to disclose any
information. She volunteered that she went to the same school as Berry did. She
was asked whether she had any personal connection1 with him, and she responded
that she was just aware that they went to the same school. In response to a
question whether “anything about that” would cause her to be less than fair and
impartial, she answered “no.” (Doc. 22, at 2-3, quoting voir dire transcript.) There
is no indication that Berry or his trial counsel were dissatisfied with her answers at
voir dire, or were prevented from exploring the school connection further.
The respondent argues that Berry’s pending state petition is meritless,
because “there is no constitutional violation where a juror, having given an honest
response to a question actually asked, innocently fails to disclose information that
might have been elicited by questions counsel did not ask.” (Doc. 22, at 6, citing
Billings v. Polk, 441 F.3d 238, 245 (4th Cir. 2006), and Grundy v. Dhillon, 120 Ohio
St.3d 415, 900 N.E.2d 153 (2008).)
The court finds that Aguilar merely avers that the juror and Bucholz
attended the same school; the juror volunteered at voir dire that she attended the
same school as Berry. This issue was raised and known to Berry and his counsel at
trial. Aguilar’s affidavit is not new evidence, and adds nothing to the juror’s

1

An indication of the lack of a personal relationship between the juror and
Berry might be found in Berry’s statement in his 2013 state petition that he “was
made aware of the relationship between the juror and himself after trial by a friend
of the juror (Veronica Aguilar),” (doc. 14, RX 24, at [29], emphasis added), despite
the juror’s testimony at voir dire that she and Berry had attended the same school.
14

testimony at voir dire. However, the merits of Berry’s pending state petition are not
for this court to resolve.
The issue is whether the fifth ground of the habeas petition is exhausted.
The court finds that it has been exhausted, and the habeas petition before this court
is not a “mixed” petition.
Exhaustion requires that the petition present the same factual basis to the
federal habeas court that was presented to the state court. Cunningham v. Hudson,
756 F.3d 477, 482 (6th Cir. 2014) (per curiam). In Cunningham, the factual basis of
the petitioner’s claims differed.2 Berry’s claim concerning the voir dire is based on
the same factual allegations. The fifth ground of his habeas petition alleges that
Bucholz “must have had prior knowledge” of Berry’s prior bad acts because they had
both attended a school where Berry set a fire, as a result of which all the contents of
the students’ lockers “were deemed damaged and discarded for insurance,”
therefore her answers to questioning at voir dire should be considered materially
incomplete. (Doc. 1, at 27-28.)
This is identical to the factual basis supporting Berry’s claim concerning the
same juror in his February 2013 petition for post-conviction relief. In that petition,
Berry alleged that the juror “failed to disclose that she was a classmate of the
petitioner during the time he was found guilty of setting fire to the local junior high

2

“Although Cunningham presented a juror-basis claim to the state court, the
factual basis was [the juror]’s knowledge of Cunningham from her colleagues, not
her alleged relationship with the families of the victims.” Cunningham, 756 F.3d at
482.
15

school,” and she was a victim because the contents of students’ lockers were
damaged. (Doc. 14, RX 24, at 3, 29-30.) Berry appealed the trial court’s denial of
his motion to both the court of appeals (doc. 14, RX 29, at 10, and RX 31, at 5), and
to the Supreme Court of Ohio (doc. 14, RX 34, at 9, 39-40), pressing the same
factual claim at each level.
Exhaustion does not require a state court adjudication on the merits of the
claim at issue, merely that the petitioner give the highest court in the state a full
and fair opportunity to rule on the petitioner’s claims. Clinkscale v. Carter, 375
F.3d 430, 438 (6th Cir. 2004), cert. denied, 543 U.S. 1177 (2005); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). It makes no difference whether the state court ruled
on the merits or denied relief on procedural grounds. Wilson v. Marshall, 532
F.Supp. 936, 937-938 (S.D. Ohio 1982). Here, the highest court in the state was
given a full and fair opportunity to rule on his claim. Doc. 14, RX 34; see Rust, 17
F.3d at 160. The exhaustion requirement is satisfied when the petitioner has raised
his claims before the state’s highest court. Clinkscale, 375 F.3d at 437 (citing
Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990)).
The exhaustion of state remedies can be accomplished either directly or
collaterally. Sones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995). A habeas petitioner
need not exhaust any and all remedies that are potentially available to him in state
court. Clinkscale, 375 F.3d at 439 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844845 (1999)). “A petitioner need exhaust only one avenue of relief in state court
before bringing a federal habeas petition.” Jackson v. Borg, 992 F.2d 1219, 1993
16

WL 140594, at *1 (9th Cir. 1993) (TABLE, text in WESTLAW) (citing Turner v.
Compoy, 827 F.2d 526, 528 (9th Cir. 1987)). This is true even where alternative
avenues of reviewing constitutional issues are still available in state court. Turner,
827 F.2d at 528.
The court finds that the fifth ground of the habeas petition has been
exhausted in the state courts, for habeas purposes, and thus the petition is not a
“mixed” petition which might be subject to a stay.
The motion to stay (doc. 21) is DENIED.

IT IS SO ORDERED.

Dated:

Oct. 28, 2015

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

17