Greer v. Bradshaw

Filing 25

Opinion & Order signed by Judge James S. Gwin on 6/14/16. The Court, for the reasons set forth in this order, denies the petitioner's motion to stay. Further, the Court denies as moot the petitioner's motion for an extension of time to file a reply brief. (Related Docs. 21 and 23 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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GEORGE T. GREER,
Petitioner,
vs.
MAGGIE BRADSHAW,
Respondent.

CASE NO. 14-CV-1975

OPINION AND ORDER
[Resolving Docs. 21, 23]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On September 2, 2014, Petitioner George T. Greer sought habeas relief under 28 U.S.C. §
2254, in part based on an allegedly unconstitutional alcohol blood test.1 Petitioner now moves to
stay his petition, pending the outcome of a Supreme Court case that challenges statutes which
criminalize refusing to submit to an alcohol blood test. However, Petitioner was not subject to
the type of criminal statute at issue in the Supreme Court’s pending litigation. The Court finds
that the pending case will not affect Petitioner’s habeas petition and DENIES the motion to stay.

I. Background
On September 2, 2014, Petitioner George T. Greer sought habeas relief under 28 U.S.C.
§ 2254. On November 25, 2014, Respondent Maggie Bradshaw filed a return of writ.2 On
December 29, 2014, Petitioner Greer filed a traverse to the return of writ.3
Petitioner’s underlying conviction is, in part, for operating a motor vehicle under the
influence of alcohol (“OVI”) in violation of Ohio Rev. Code. § 4511.19(A)(1)(a). During his

1

Doc. 1.
Doc. 6. Maggie Bradshaw is the Warden of Richland Correctional Institution.
3
Doc. 8.
2

Case No. 14-cv-1975
Gwin, J.
2012 arrest, Petitioner was subject to an alcohol blood test under Ohio Rev. Code
§ 4511.191(A)(5). Under this provision, if a law enforcement officer arrests somebody for OVI,
and that person has two previous OVI convictions, “the law enforcement officer shall request the
person to submit, and the person shall submit, to a chemical test or tests” for blood alcohol
levels.4 If a person does not submit to the blood test, an officer may “employ whatever
reasonable means necessary to ensure that the person submits to a chemical test.”5 There is no
criminal penalty for non-compliance.
Petitioner’s conviction was based, in part, on blood drawn under this statute. After his
2012 conviction, the United States Supreme Court addressed the constitutionality of alcohol
blood tests in Missouri v. McNeely.6 In particular, the Supreme Court concluded that a
warrantless blood draw was not available, per se, under the exigency exception to the Fourth
Amendment’s prohibition on warrantless searches and seizures. Instead, a warrantless blood
draw would only be available after analysis of the totality of the circumstances.
Petitioner moved for leave to supplement his habeas petition with McNeely and other
recent state court cases on the propriety of the alcohol blood test.7 Respondent Bradshaw
opposed.8 Magistrate Judge Limbert granted the motion.

4

Ohio Rev. Code § 4511.191(A)(5).
Id.
6
___ U.S. ___, 133 S. Ct. 1552 (2013).
7
Doc. 10. At least one Ohio criminal law treatise has indicated that required blood tests under
Ohio Rev. Code § 4511.191(A)(5) may be subject to challenge in light of McNeely. Baldwin’s Ohio
Driving Under Influence Law § 6:5 (2015) (In 2011, Ohio courts upheld the constitutionality of the
mandatory blood test law in State v. Slates. However, McNeely “certainly calls the reasoning and
conclusion of Slates into serious doubt.”); Id. at § 9:73 (“Current statutory provisions require offenders
charged with operating a vehicle or watercraft under the influence, and who have two prior applicable
convictions, to submit on request to a chemical test . . . . This section will likely see challenges under
Missouri v. McNeely.”).
8
Doc. 14. Petitioner filed a reply. Doc. 16.
5

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Case No. 14-cv-1975
Gwin, J.
Magistrate Judge Limbert issued his Report and Recommendation, including discussion
of McNeely.9 The R&R recommends denying Greer’s petition in its entirety with prejudice. 10
Petitioner Greer objected.11 The R&R is currently pending review by this Court.
This term, the Supreme Court heard argument in Birchfield — three consolidated cases
that address the question of whether a state may criminalize failure to submit to a blood alcohol
test in light of McNeely.12 Petitioner moved to stay this Court’s review of the R&R, pending a
decision from the Supreme Court in Birchfield.13 Respondent Bradshaw objects.14

II. Legal Standard
It is well established that it is within the discretion of a federal court to stay an action,
incidental to its power to control its docket.15
The proponent of a motion to stay has the burden to show “a clear case of hardship or
inequity in being required to go forward, if there is even a fair possibility that the stay for which
he prays will work damage to someone else.”16

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Doc. 18.
Id.
11
Doc. 20.
12
Danny Birchfield v. North Dakota, No. 14-1468, Beylund v. North Dakota, No. 14-1507,
Bernard v. Minnesota, No. 14-1470.
13
Doc. 21.
14
Doc. 22.
15
See Landis v. North American Co., 299 U.S. 248, 254-55 (1936) (“[T]he power to stay
proceedings is incidental to the power inherent in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for counsel, and for litigants.”).
16
Ohio Env’t Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir.
1977).
10

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Case No. 14-cv-1975
Gwin, J.
III. Analysis
Petitioner Greer has not shown that this Court should stay his § 2254 petition. Birchfield
will address the narrow question of whether a State can criminalize failure to submit to a blood
test. Ohio’s statute does not criminalize failure to submit to a blood test. And Greer was not
convicted of such a crime.
McNeely raises questions — discussed in the R&R and Petitioner’s objections thereto —
about the constitutionality of Ohio’s blood draw statute. But Birchfield and the two other
consolidated cases are not poised to add anything further to the discussion of Greer’s ineffective
assistance of counsel claim, or his allegation that the state court appellate decision was contrary
to McNeely.
The Court DENIES Petitioner’s motion to stay.17

IT IS SO ORDERED.

Dated: June 14, 2016

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

As the Court has denied the motion to stay, the Court also denies as moot Petitioner’s pending
motion for an extension to file a reply brief. Doc. 23. Petitioner filed a reply brief even though the Court
did not grant Petitioner’s motion for extended time. Doc. 24. Petitioner’s arguments in his reply do not
alter the Court’s analysis.
17

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