Creech v. Warden, Chillicothe Correctional Institution

Filing 23

DECISION AND ORDER - The Petition herein is STAYED pending the outcome of Petitioner's presently pending appeal. Petitioner shall keep this Court currently advised of the status of those proceedings. Signed by Magistrate Judge Michael R. Merz on 3/18/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SCOTT D. CREECH,
Petitioner,

:

- vs -

Case No. 1:15-cv-193
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case, brought pro se by Petitioner Scott Creech, is before the Court on
Petitioner’s Reply (“Traverse,” ECF No. 22).

In addition to responding to he Warden’s

arguments in the Return and asking for judgment on the merits, Petitioner alternatively requests a
stay pending resolution of his current appeal to the Fourth District Court of Appeals from his
December 23, 2015, re-sentencing.
Ordinarily a state criminal defendant is required to exhaust available state court remedies
before proceeding in federal court. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S.
270, 275 (1971). The exhaustion doctrine is not jurisdictional and is thus waivable by the State,
Ex parte Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481 U.S. 129 (1987). Here the
Warden has declined to insist on exhaustion. (Return of Writ, ECF No. 19, PageID 1383.)
The Warden wants the Court to decide the case as it presently stands without awaiting

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exhaustion. From the Petitioner’s perspective, however, this could leave him with a decision on
the merits of his present Petition but unable to obtain federal review of any eventual state court
decision because of the bar on second-or-successive habeas petitions. It was this possibility,
created by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA"), that brought the Supreme Court to recognize the authority of district
courts to stay pending habeas cases rather than dismiss them for lack of exhaustion. Rhines v.
Weber, 544 U.S. 269, 277-278 (2005). Because Creech’s state court proceedings are already
filed, there is no need for this Court to set any time limits on his proceeding in state court.
Accordingly, further consideration of the Petition herein is STAYED pending the
outcome of Petitioner’s presently pending appeal. Petitioner shall keep this Court currently
advised of the status of those proceedings.

March 18, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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