Monroe v. Warden Ohio State Penitentiary

Filing 177

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S SECOND MOTION TO STAY AND HOLD CASE IN ABEYANCE. Signed by Magistrate Judge Michael R. Merz on 8/17/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JONATHON D. MONROE,
:
Petitioner,

Case No. 2:07-cv-258
:

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vsWARDEN, Ohio State Penitentiary,
:
Respondent.

DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART PETITIONER’S SECOND MOTION TO STAY AND HOLD
CASE IN ABEYANCE

This capital habeas corpus case is before the Court on Petitioner=s Second Motion to Stay
and Hold Case in Abeyance (ECF No. 167). The Warden opposes the stay (ECF No. 168) and
Petitioner has filed a Reply in support (ECF No. 169). At the Court’s request (ECF No. 170),
both parties filed supplemental memoranda (ECF Nos. 171, 172).
A motion to stay is a non-dispositive pretrial matter within the initial decisional authority
of an assigned Magistrate Judge, subject to appeal to the assigned District Judge. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a).
Petitioner seeks a stay so that he can present to the Ohio courts “new evidence and new
claims which were only uncovered during discovery in this habeas case.” (Motion, ECF No.
167, PageID 8241.)
The claims Petitioner seeks to exhaust were first set forth in his Reply as follows:
Petitioner will proceed under Ground 1 under a claim of
prosecutorial misconduct based on the facts and evidence
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contained in paragraphs 100-A through 100-O of the First
Amended Petition.
Petitioner will proceed under Ground 8(A) under a claim of
ineffective assistance of trial counsel based on the facts and
evidence contained in paragraphs 181-A through 181-O.
Petitioner will proceed under Ground 8(B) under claims of
ineffective assistance of trial counsel based on the facts and
evidence contained in paragraphs 194-A through 194-GG, 195HH, 200-A, 204-A through 204-C, 205-A, 207-A, 234-A through
234-T.
Petitioner will proceed under Ground 9(A) under a claim of
ineffective assistance of trial counsel at the penalty phase based on
the facts and evidence contained in paragraphs 253-A through 253L.
Petitioner will proceed under Ground 9(B) under a claim of
ineffective assistance of trial counsel at the penalty phase based on
the facts and evidence contained in paragraphs 263-A through 263P. Petitioner will proceed under Ground 9(E) under a claim of
ineffective assistance of trial counsel at the mitigation phase based
on the facts and evidence contained in paragraphs 344-A through
344-C.
Petitioner will proceed under Ground 9(F) under a claim of
ineffective assistance of trial counsel at the mitigation phase based
on the facts and evidence contained in paragraph 355(A).
Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of appellate counsel based on the facts and
evidence contained in paragraphs 383-A through 383-K.
Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of appellate counsel based on the facts and
evidence contained in paragraphs 386-A through 386-G.

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Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of appellate counsel based on the facts and
evidence contained in paragraph 414-A.
Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of appellate counsel based on the facts and
evidence contained in paragraph 418-A.
Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of trial counsel based on the facts and
evidence contained in paragraphs 420-A.
Petitioner will proceed under Ground 10 under a claim of
ineffective assistance of trial counsel based on the facts and
evidence contained in paragraphs 421-A through 421-L.
(ECF No. 169, PageID 8275-76.) Later, in his Response to Respondent’s Supplemental Brief, he
asserted “[t]he amendments to claims 1, 8(B), and 9 are unexhausted.” (ECF No. 172, PageID
8308). However, at the same place, he “acknowledges that the amendments to claim 10 of the
Amended Petition are exhausted.” Id. The Magistrate Judge takes this as a withdrawal of any
request for stay to permit further presentation of Ground 10 to the Ohio courts and will not
discuss Ground 10 further.
On March 23, 2016, District Judge Sargus allowed amendment to the Petition with
respects to the following proposed additions:
Additions allowed by the Magistrate Judge without objection by the Warden:
Paragraph 100-A to ground one; paragraphs 194-A to 194-HH to
subpart B of ground eight; paragraph 200-A to sub-part B of
ground eight; paragraphs 204-A through 204-C to sub-part B of
ground eight; paragraph 205-A to sub-part B of ground eight;
paragraph 207-A to sub-part B of ground eight; paragraphs 263-A
through 263-P to sub-part B of ground nine; paragraphs 344-A
through 344-B to sub-part E of ground nine; paragraph 355-A to
sub-part F of ground nine; paragraphs 386-C through 386-G to

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ground ten; paragraph 414-A to ground ten; paragraph 418-A to
ground ten; and paragraph 420-A to ground ten.
(Opinion and Order, ECF No. 158, PageID 8011.)
Additions allowed by Judge Sargus by sustaining Petitioner’s Objections to the
Magistrate Judge’s Order to the contrary:
[P]aragraphs 100-B through 100-0 [ground one]; paragraphs 181-A
through 181-0 [ground 8(A)]; paragraphs 234-A through 234-T
[ground 8(B)]; paragraphs 253-A through 253-L [ground nine];
paragraph 344-C [ground nine]; paragraphs 383-A through 383-K
[ground ten]; paragraphs 386-A through 386-B [ground ten];
paragraphs 421-A through 421-K; and paragraph 421-L [ground
ten].

Id. at PageID 8018.
On September 30, 2016, Chief Judge Sargus adopted, over Petitioner’s Objections, the
Magistrate Judge’s recommendation not to amend Judge Watson’s decision on procedural
default as it relates to Grounds for Relief One, Four, Six, Seven, and Eight (A)(Opinion and
Order, ECF No. 166). As a result, those Grounds for Relief remain dismissed as procedurally
defaulted, although the dismissal is not yet embodied in a judgment.
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. §
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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). “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.
This Court has already determined that Monroe was diligent in attempting to discover the
facts that underlie his amendments to the Petition. The relevant amendments are grounded in the
discovery permitted by this Court which Petitioner was not able to pursue in post-conviction in
the Ohio courts. Similarly, the Court concluded the amendments were potentially meritorious
when it allowed amendment at all; otherwise, it would have denied the amendments as futile.
Petitioner suggests that his available remedies are a successive petition for postconviction relief under Ohio Revised Code § 2953.23 and/or a motion for leave to file a delayed
motion for new trial under Ohio R. Crim. P. 33. Whether or not the Ohio courts will entertain
such proceedings is for them to decide in the first instance, rather than for this Court to speculate.
Because of the Supreme Court’s stringent limitation on evidentiary hearings in habeas
corpus adopted in Cullen v. Pinholster, 563 U.S. 170 (2011), Petitioner is unable to present the
results of his habeas discovery directly to this Court, but must present or attempt to present them
to the state courts first. Pinholster thus has the unintended consequence of further delaying the
finality of habeas proceedings by allowing a return trip to the state courts.
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This Court’s

experience with stays pending state court action is that the Ohio courts, at least in the busy urban
counties from which capital convictions mostly come, is that the delays are lengthy. Still, it is
presumably the State’s interest in carrying out sentences expeditiously that Congress was
attempting to protect in the AEDPA; there is no separate federal interest in speedier executions.
It is also in the State’s interest to have the state courts pass on federal constitutional claims in the
first instance. It is precisely this sort of comity between this and the state courts that is protected
by the stay process allowed under Rhines. It is incumbent on the State of Ohio to provide its
Common Pleas Courts with sufficient resources to enable them to adjudicate these death penalty
claims.
Claims which this Court has determined are not meritorious because they are barred by
procedural default are not appropriate bases for a stay. Because the Court has found Grounds for
Relief One and Eight(A) barred by procedural default, the Motion to Stay is DENIED as to those
two Grounds.
Grounds Eight(B), Nine(A), Nine(B), and Nine(F) meet the Rhines standard. Therefore
the Motion to Stay is GRANTED as to those four claims on condition they are presented to the
Franklin County Common Pleas Court by successive petition for post-conviction relief and/or
motion for leave to file a delayed motion for new trial not later than October 1, 2017. Petitioner
shall file with this Court copies of any applications made to the Franklin County Common Pleas
Court and the parties shall file a joint status report on the state court litigation not later than
November 1, 2017, and every sixty days thereafter.

August 17, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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