Dalmida v. Warden, Toledo Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS re 6 Motion to Stay: IT IS RECOMMENDED THAT: The petition (Doc. 1) be administratively STAYED and TERMINATED on the Courts active docket pending petitioners exhaustion of his Ohio remedies. Objections to R&R due by 11/13/2017. Signed by Magistrate Judge Stephanie K. Bowman on 10/30/2017. (jlw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GRADY DALMIDA,

Case No. 1:17-cv-488

Petitioner,
Dlott, J.
Bowman, M.J.

v.

WARDEN, TOLEDO
CORRECTIONAL INSTITUTION,

REPORT AND
RECOMMENDATION

Respondent.

Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1). This matter is before the Court on petitioner’s unopposed motion to stay the
proceedings pending exhaustion. (Doc. 6; see also Doc. 7). Good cause appearing therefor, the
Court recommends that the motion to stay (Doc. 6) be granted. Rhines v. Weber, 544 U.S. 269
(2005) (district courts have discretion to hold mixed petition in abeyance pending exhaustion of
unexhausted claims).
Accordingly, IT IS HEREBY RECOMMENDED that the instant proceedings be
STAYED while petitioner is afforded the opportunity to fully exhaust his state court remedies.
To ensure that judicial and administrative resources are conserved, it is FURTHER
RECOMMENDED that the stay take the form of an administrative stay and that the case be
terminated on the Court’s active docket.
IT IS THEREFORE RECOMMENDED THAT:
1.

The petition (Doc. 1) be administratively STAYED and TERMINATED on the

Court’s active docket pending petitioner’s exhaustion of his Ohio remedies. The stay should be

conditioned on petitioner’s filing a motion to reinstate the case on this Court’s active docket
WITHIN THIRTY (30) DAYS after fully exhausting his state court remedies through the
requisite levels of state appellate review. Petitioner should be granted leave to reinstate the case
on the Court’s active docket when he has exhausted his Ohio remedies based on a showing that
he has complied with the conditions of the stay.
2.

A certificate of appealability should not issue under the standard set forth in Slack

v. McDaniel, 529 U.S. 473, 484-85 (2000), which is applicable to this case involving a
recommended stay of the petition so that petitioner can exhaust available state court remedies.
Cf. Porter v. White, No. 01-CV-72798-DT, 2001 WL 902612, at *3 (E.D. Mich. Aug. 6, 2001)
(unpublished) (citing Henry v. Dep’t of Corrections, 197 F.3d 1361 (11th Cir. 1999) (pre-Slack
case)) (certificate of appealability denied when case dismissed on exhaustion grounds). See
generally Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998); Christy v. Horn, 115 F.3d
201, 203-206 (3rd Cir. 1997) (order staying habeas petition to allow exhaustion of state remedies
is appealable collateral order). “Jurists of reason” would not find it debatable whether this Court
is correct in its procedural ruling that petitioner has failed to exhaust state court remedies and
that the case should be stayed (as opposed to dismissed without prejudice) pending exhaustion of
such remedies. 1
3.

With respect to any application by petitioner to proceed on appeal in forma

pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order
adopting this Report and Recommendation would not be taken in “good faith,” and therefore
DENY petitioner leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v.
1

Because this Court finds the first prong of the Slack standard has not been met in this case, it need not address the
second prong of Slack as to whether or not “jurists of reason” would find it debatable whether petitioner has stated
viable constitutional claims for relief in his habeas petition. See Slack, 529 U.S. at 484.

2

Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GRADY DALMIDA,
Petitioner,

Case No. 1:17-cv-488

Dlott, J.
Bowman, M.J.

v.

WARDEN, TOLEDO
CORRECTIONAL INSTITUTION,
Respondent.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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