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)

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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 3 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). 4

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