Pettus v. Warden, Franklin Medical Center

Filing 41

DECISION AND ORDER GRANTING MOTION FOR STAY 40 . Signed by Magistrate Judge Michael R. Merz on 2/17/2021. (kpf)

Case: 1:20-cv-00187-MRB-MRM Doc #: 41 Filed: 02/17/21 Page: 1 of 2 PAGEID #: 2238

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
LASHAWN R. PETTUS,
Petitioner,

:

- vs -

Case No. 1:20-cv-187
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN,
Franklin Medical Center,
:
Respondent.

DECISION AND ORDER GRANTING MOTION FOR STAY

This habeas corpus case is before the Court on Petitioner’s Second Motion to Stay Habeas
Proceedings (ECF No. 40). In the Motion Petitioner notes that, although his Application for
Reopening his appeal under Ohio R. App. P. 26(B) was denied December 23, 2020, he has
appealed to the Supreme Court of Ohio which has not yet decided whether to accept jurisdiction.
He seeks a stay pending the outcome of that appeal.
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. Rhines v. Weber, 544 U.S. 269 (2005). 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
1

Case: 1:20-cv-00187-MRB-MRM Doc #: 41 Filed: 02/17/21 Page: 2 of 2 PAGEID #: 2239

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.
Id. at 277-278. “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging
finality by allowing a petitioner to delay the resolution of federal proceedings. Id. It also directed
district courts to place reasonable time limits on the petitioner’s trip to state court and back. The
Court thus endorsed the approach this Court had been following under Palmer v. Carlton, 276 F.3d
377 (6th Cir. 2002), and Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002).
Habeas corpus exhaustion doctrine requires Petitioner to exhaust state court remedies for
ineffective assistance of appellate counsel claims and a proceeding under App. R. 26(B) is the
appropriate manner for doing that. The same doctrine requires complete exhaustion through the
state supreme court level which it appears Petitioner is appropriately pursuing.
Accordingly, it is hereby ORDERED that these proceedings be stayed pending the outcome
in Ohio Supreme Court Case No. 2021-0176. Petitioner’s counsel shall promptly advise this Court
when he receives notice of that outcome.

February 17, 2021.
s/ Michael R. Merz
United States Magistrate Judge

2