Jewett v. Warden, Noble Correctional Institution

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS (Doc. 21 ). Respondent's motion to lift the stay (Doc. 18 ) is DENIED. Petitioner's motion for an enlargement or extension of time to continue the stay (Doc. 19 ) is GRANTED to allow this case to remain stayed while Petitioner exhausts his claim for relief. Signed by Judge Jeffery P. Hopkins on 5/5/2023. (kmc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TYRONE JEWETT,
Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL
INSTITUTION,
Respondent.

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Case No. 1:18-cv-406
Judge Jeffery P. Hopkins

ORDER ADOPTING REPORT AND RECOMMENDATION
The Court has reviewed the Report and Recommendation of United States Magistrate
Judge (Doc. 21), to whom this case was referred pursuant to 28 U.S.C. § 636(b). Noting that
no objections have been filed and that the time for filing such objections under Fed. R. Civ.
P. 72(b) has expired, the Court hereby ADOPTS the Report and Recommendation in its
entirety.
After carefully considering the filings in this matter and the Magistrate Judge’s
findings, the Court is satisfied that the Magistrate Judge is correct that the Respondent’s
motion to lift the stay should be denied so that the Petitioner can exhaust his state remedies
on the claim of newly discovered evidence in the Ohio appellate courts. It is settled law that
the exhaustion of state remedies for a claim raised in a federal habeas corpus action requires
that the habeas petitioner give “the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In this and other circuits, this
means that a habeas prisoner usually must “present his claim to the state’s highest court in

order to exhaust state remedies.” Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); see also
Hughes v. Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986); Toney v. Franzen, 687 F.2d 1016, 1021
(7th Cir. 1982).
Here, the Court takes judicial notice of the decision recently handed down by the Ohio
appeals court on March 22, 2023. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004)
(noting that a federal court can take judicial notice of another court’s records that are available
online to members of the public). In the decision, the Ohio appeals court rejected the
Petitioner’s claim of newly discovered evidence as a basis for postconviction relief and for a
new trial. State v. Jewett, Case No. 22CA4004, 2023 WL 2620075 (Ohio Ct. App. Mar. 22,
2023). That decision has been appealed to the Supreme Court of Ohio. State v. Jewett, Case
No. 23-0555 (Ohio Apr. 26, 2023).
Based on the foregoing, the Petitioner appears still to be in the process of exhausting
his claim of newly discovered evidence through an appeal to the Supreme Court of Ohio. As
the Magistrate Judge correctly found, the stay of these proceedings should therefore remain
in place until the Petitioner’s state remedies are fully exhausted.
Accordingly, it is hereby ORDERED that the Report and Recommendation (Doc. 21)
is ADOPTED. Consistent with the Report and Recommendation, Respondent’s motion to
lift the stay (Doc. 18) is DENIED. Further, the Petitioner’s motion for an enlargement or
extension of time to continue the stay (Doc. 19) is GRANTED to allow this case to remain
stayed while Petitioner exhausts his claim for relief.
IT IS SO ORDERED.
Dated: May 5, 2023
Hon Jeffery P. Hopkins
United States District Judge

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