Simmons v. Warden, London Correctional Institution
ORDER ON MOTION FOR RECONSIDERATION - Warden's Motion for Reconsideration of a Portion of this Court's Order Staying Proceedings (ECF No. 15) is denied. Signed by Magistrate Judge Michael R. Merz on 6/20/2017. (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
- vs -
Case No. 1:16-cv-414
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
BRIAN COOK, Warden,
Southeastern Correctional Complex,
ORDER ON MOTION FOR RECONSIDERATION
This habeas corpus case under 28 U.S.C. § 2254 is before the Court on the Warden’s
Motion for Reconsideration of a Portion of this Court’s Order Staying Proceedings (ECF No.
The Warden asserts that the Sixth Circuit requires that stays “be conditioned on the
petitioner[‘s] returning to federal court within 30 days of exhaustion.” (Motion, ECF No. 15,
PageID 1876, citing Griffin v. Rogers, 399 F.3d 626 (6th Cir. 2005)). Griffin is not controlling.
It was decided early in March 2005. Later that same month, the Supreme Court decided Rhines
v. Weber, 544 U.S. 269 (2005), which allowed a district court to stay a mixed petition habeas
case pending exhaustion, rather than dismiss as had been required under Rose v. Lundy, 455 U.S.
509 (1982). The petitioner in Griffin had her mixed petition dismissed without prejudice and
was required to “return” – to re-file – within thirty days of exhaustion under Palmer v. Carlton,
276 F.3d 777 (6th Cir. 2002), and Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002). There is
no need to require Petitioner Simmons to “return” to federal court in that sense because his
petition will remain pending, albeit stayed.
The Warden also asks that the Court impose the requirement of filing status reports on
the Petitioner rather than the Warden because “Simmons is in a much better position to provide
this service to the Court.” (ECF No. 15, PageID 1876.) The Court rejects this notion. Petitioner
is an incarcerated pro se litigant who does not have permission or, presumably, the capacity to
check the status of his case online or to report that status to this Court. Conversely, the Attorney
General’s office has both of those capacities.
While it is true that the Hamilton County
Prosecutor’s Office represents the State of Ohio in the state court proceedings and the Attorney
General represents the State, through the Warden as nominal party and custodian, in this Court,
both offices are defending the same criminal judgment. Because Mr. Deters is not a party to this
case nor attorney for the Warden, the Court is unable to order his office to make the status
reports, but surely a cooperative arrangement should be possible between the two officers
representing the State for the Attorney General to receive notice of what happens in the state
court proceedings. Even if some bureaucratic negotiation is necessary to make this happen, it is
attorneys who are officers of the Court, not pro se incarcerated parties. Therefore the request to
impose the status report requirement on the Petitioner is DENIED.
June 20, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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