Wogenstahl v. Warden, Chillicothe Correctional Institution

Filing 34

ORDER STAYING PROCEEDINGS PENDING STATE COURT LITIGATION - All proceedings herein are STAYED pending the exhaustion of Wogenstahl's successive post-conviction action in the Ohio courts (including appeal to the First District and the Supreme Co urt of Ohio). The parties shall file a joint status report on that litigation not later than November 1, 2018, and every ninety days thereafter or when the litigation is completed. In order to ensure that the record needed for this litigation remai ns available, Respondent's counsel shall file in this case, in the electronic format being used for state court records in all habeas cases in this Court, the state court record that was before the Court in the prior habeas case. Signed by Magistrate Judge Michael R. Merz on 9/13/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEFFREY A. WOGENSTAHL,
Petitioner,

:

- vs -

Case No. 1:17-cv-298
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

Warden,
Chillicothe Correctional Institution,
:
Respondent.

ORDER STAYING PROCEEDINGS PENDING STATE COURT
LITIGATION

This capital habeas corpus case came on for scheduling conference by telephone on
Thursday, September 13, 2018. Attorneys Kimberly S. Rigby and Andrew Avellano represented
the Petitioner; Attorneys Brenda Leikala and Charles Wille represented the Respondent.
The Petition in this case was filed May 8, 2017, and eventually transferred to the Sixth
Circuit Court of Appeals as a second-or-successive habeas application in light of Case No. 1:99cv-843. On September 4, 2018, the Sixth Circuit gave permission under 28 U.S.C. § 2244(b) for
the case to proceed. In re Wogenstahl, ___ F.3d ___, 2018 U.S. App. LEXIS 25024 (6th Cir. 2018).
Counsel advised that, contemporaneously with the filing in this Court, Petitioner had filed
a successive post-conviction petition in the Common Pleas Court of Hamilton County, Ohio, in
that court’s Case No. B926287 which renders the Petition in this case “mixed” in that at least some
of the claims made have not yet been exhausted in the Ohio courts. Petitioner’s counsel then made
an oral motion for stay of these proceedings pending exhaustion to which Respondent’s counsel

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consented.
District courts have authority to grant stays in habeas corpus cases to permit exhaustion of
state court remedies in consideration of the AEDPA’s preference for state court initial resolution
of claims. However, in recognizing that authority, the Supreme Court held:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines
there was good cause for the petitioner's failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for
that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005). In granting Wogenstahl permission to proceed,
the Sixth Circuit determined, at least prima facie, that he had been diligent in discovering the
evidence on which he now relies and that his claims based on that evidence make “a prima facie
showing that he can establish by clear and convincing evidence that no reasonable factfinder would
have found him guilty.” Wogenstahl, supra, at *12. That finding clearly satisfied the Rhines
standard that there was good cause for failure to exhaust previously and that the claims made are
not “plainly meritless.”
Accordingly, all proceedings herein are STAYED pending the exhaustion of Wogenstahl’s
successive post-conviction action in the Ohio courts (including appeal to the First District and the
Supreme Court of Ohio). The parties shall file a joint status report on that litigation not later than
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November 1, 2018, and every ninety days thereafter or when the litigation is completed.
In order to ensure that the record needed for this litigation remains available, Respondent’s
counsel shall file in this case, in the electronic format being used for state court records in all
habeas cases in this Court, the state court record that was before the Court in the prior habeas case.

September 13, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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