Boles v. Warden, Chillicothe Correctional Institution

Filing 19

ORDER adopting Report and Recommendation 16 ; denying the motion to dismiss; granting the motion to stay; administratively closing case pending exhaustion of state court remedies. A certificate of appealability will not issue. Petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 1/12/16. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Patrick Boles,
Petitioner,
vs.
Warden, Chillicothe
Correctional Institution,
Respondent.

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) Case No. 1:14-CV-903
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ORDER

Petitioner Patrick Boles, represented by counsel, filed a motion for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 asserting eleven grounds for relief. On December 7,
2015, Magistrate Judge Litkovitz filed a report and recommendation (Doc. No. 16) finding
that Petitioner is still in the process of exhausting his state remedies as to the ineffective
assistance of trial counsel claim alleged in Ground Three of his petition. Judge Litkovitz
recommended denying Respondent’s motion to dismiss (Doc. No. 8), but concluded that
the entire case should be stayed while Petitioner exhausts that claim. Judge Litkovitz
further recommended administratively closing the case on the Court’s active docket with
the provision that Petitioner can reopen the case by filing a motion to reinstate within 30
days of fully exhausting his currently unexhausted claim.

The Report and

Recommendation advised both parties that objections must be filed within 14 days of being
served with a copy of the report.
Neither party filed objections to the Report and Recommendation within the time
allowed. Petitioner did file pro se two sets of affidavits after the Report was docketed. His
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own affidavit (Doc. No. 17) is largely incomprehensible. The second set of affidavits (Doc.
No. 18) purport to support Petitioner’s version of the facts underlying his convictions.
Neither document, however, is responsive to the Report and Recommendation.
Petitioner is not entitled to hybrid representation. Keenan v. Bagley, No. 1:01-CV2139, 2010 WL 1133238, at *1-*2 (N.D. Ohio Mar. 2010); 28 U.S.C. § 1654 (“In all courts
of the United States the parties may plead and conduct their own cases personally or by
counsel as, by the rules of such courts, respectively, are permitted to manage and conduct
causes therein.”). Therefore, his two affidavits will not be considered by the Court. In any
event, neither constitutes a proper objection to the Report and Recommendation.
Accordingly, the Court concludes that there are no objections to Judge Litkovitz’s Report
and Recommendation. See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine
de novo any part of the magistrate judge's disposition that has been properly objected to.”).
Conclusion
1. The Court ADOPTS the Report and Recommendation.
2. Respondent’s motion to dismiss (Doc. No. 8) is not well-taken and is DENIED.
3. Petitioner’s motion to stay (Doc. No. 9) is well-taken and is GRANTED.
4. This case is STAYED pending Petitioner’s exhaustion of his state court remedies. This
case shall be administratively closed on the Court’s active docket. Petitioner may reopen
the case by filing a motion to reinstate within thirty (30) days after fully exhausting his state
court remedies through the requisite levels of appellate review. The case will be reopened
upon Petitioner’s showing of compliance with all the conditions of the stay.
5. A certificate of appealability shall not issue on the matters raised herein. See 28 U.S.C.A.
§ 2253(c); Fed. R. App. P.22(b). Petitioner remains free to request issuance of a
certificate of appealability from the Court of Appeals. Id.

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6. The Court certifies pursuant to 28 U.S.C.A. § 1915(a)(3) that an appeal of this order
would not be taken in good faith, and therefore DENIES Petitioner leave to appeal this
order in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949,
952 (6th Cir. 1997).

IT IS SO ORDERED
Date January 12, 2016

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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