McKnight v. Warden, Ohio State Penitentiary

Filing 282

DECISION AND ORDER ON MOTION TO AMEND denying 271 Sealed Motion. Signed by Magistrate Judge Michael R. Merz on 5/22/18. (pb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

DECISION AND ORDER ON MOTION TO AMEND
This capital habeas corpus case is before the Court on Petitioner’s Motion for Leave to File
an Amended Petition (ECF No. 271). On the Court’s Order to do so, McKnight supplemented his
Motion (ECF No. 278). The Warden opposes the Motion (ECF No. 279) and McKnight has filed
a Reply (ECF No. 280).
A motion to amend a habeas petition is a non-dispositive pre-trial motion within the
decisional authority of a Magistrate Judge. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist.
LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S. Dist.
LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.).
28 U.S.C. § 2242 provides that a habeas corpus petition “may be amended or supplemented
as provided in the rules of procedure applicable to civil actions.” The general standard for
considering a motion to amend under Fed. R. Civ. P. 15(a) was enunciated by the United States
Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
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opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of any allowance of the amendment,
futility of amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983); Neighborhood
Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United States ex rel.
Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose, J.); William
F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio March 31,
2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington,
M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”).
McKnight proposes to add two new grounds for relief:

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FORTY-FIFTH GROUND FOR RELIEF: GREGORY
MCKNIGHT'S SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENT RIGHTS WERE VIOLATED WHEN AT LEAST
ONE JUROR VOTED TO CONVICT MCKNIGHT BASED ON
RACIAL ANIMUS AND BIAS.
FORTY-SIXTH GROUND FOR RELIEF: GREGORY
MCKNIGHT'S SIXTH, EIGHTH AND FOURTEENTH
AMENDMENT RIGHTS WERE VIOLATED WHEN AT LEAST
ONE JUROR VOTED FOR DEATH BASED ON RACIAL
ANIMUS.
(Proposed Amended Petition, ECF No. 271-1, PageID 17493, 17497.)
Petitioner’s proposed new grounds for relief assertedly arise from the Supreme Court’s
decision last year in Peña-Rodriguez v. Colorado, 137 S.Ct. 855, 197 L.Ed. 2d 107 (2017).
The Warden does not contend that amending to add these claims would be futile in the
sense that they would fail to state a claim upon which habeas corpus relief could be granted. It is
plainly unconstitutional to convict someone and sentence him to death because of his race or on
the basis of racial stereotyping.1
The Court raised sua sponte the question of counsels’ diligence in bringing these claims
(ECF No. 275). McKnight responded by noting they were brought within one year after the
decision in Peña-Rodriguez, supra. Assuming arguendo that the claims arose when the Supreme
Court handed down Peña-Rodriguez on March 6, 2017, the Motion to Amend beat the statute of
limitations by one day. However, the Court does not accept the implication that any habeas claim
not barred by the statute of limitations has been brought with due diligence. Here, however,
McKnight has explained that the investigation necessary to gather evidence for the claims (by
interviewing jurors) did not begin until after Peña-Rodriguez was decided and required extensive

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McKnight pleads these Grounds for Relief under the Sixth, Eighth, and Fourteenth Amendments, but does not
explain how the Eighth Amendment is implicated.

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work (Supplemental Memorandum, ECF No. 278). Faced with that account of the investigation,
the Warden raises no lack of diligence defense.
Rather, the Warden contends amendment would be futile because, under Teague v. Lane,
489 U.S. 288 (1989), Peña-Rodriguez does not apply retroactively to cases pending on collateral
review (Warden’s Opposition, ECF No. 279). Petitioner disagrees on many bases (Reply, ECF
No. 280), each of which will be discussed below.
Teague provides that subject to two narrow exceptions, a case that is decided after a
defendant's conviction and sentence become final may not provide the basis for federal habeas
relief if the case announces a new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black,
503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989).
The Teague analysis is normally a threshold issue, but the nonretroactivity principle is not
jurisdictional in the sense that federal courts must raise and decide it sua sponte; a federal court
may, but need not, decline to apply Teague if the State does not argue it. Caspari v. Bohlen, 510
U.S. 383 (1994). Here the Warden relied on Teague on the first occasion he had to brief the Motion
to Amend.
“Two exceptions to the Teague rule, however, permit the retroactive application of a new
rule whenever: 1) the rule places certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe or otherwise prohibits imposition of a
certain type of punishment for a class of defendants because of their status or offense; or 2) the
rule announces a new “watershed” rule of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.” In re Carl Green, 144 F.3d 384, 386 (6th Cir. 1998),
citing Caspari v. Bohlen, 510 U.S. at 396.
McKnight does not contend Peña-Rodriguez is retroactive because it creates a new

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substantive rule under the first prong of Teague. Rather, he contends Peña-Rodriguez is not a new
rule of criminal procedure at all, but some other kind of rule to which Teague does not apply
(Supplemental Memorandum, ECF No. 278, PageID 17526-30).
The Court considers first what was actually decided in Peña-Rodriguez and then how that
decision fits into the Teague analysis,

The Peña-Rodriguez Decision

The Supreme Court heard Peña-Rodriguez on certiorari to the Colorado Supreme Court,
i.e., on direct review. Miguel Peña-Rodriguez was charged with three counts of sexual misconduct
with two female minors. Immediately following discharge of the jury but in the jury room, two
jurors told defense counsel that “another juror expressed anti-Hispanic bias toward petitioner and
petitioner’s alibi witness.” 137 S.Ct. at 861. As instructed by the trial judge, counsel obtained
affidavits from these two jurors.
The affidavits by the two jurors described a number of biased
statements made by another juror, identified as Juror H. C.
According to the two jurors, H. C. told the other jurors that he
“believed the defendant was guilty because, in [H. C.’s] experience
as an ex-law enforcement officer, Mexican men had a bravado that
caused them to believe they could do whatever they wanted with
women.” Id., at 110. The jurors reported that H. C. stated his belief
that Mexican men are physically controlling of women because of
their sense of entitlement, and further stated, “‘I think he did it
because he’s Mexican and Mexican men take whatever they want.’”
Id., at 109. According to the jurors, H. C. further explained that, in
his experience, “nine times out of ten Mexican men were guilty of
being aggressive toward women and young girls.” Id., at 110.
Finally, the jurors recounted that Juror H. C. said that he did not find
petitioner’s alibi witness credible because, among other things, the

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witness was “‘an illegal.’” Ibid. (In fact, the witness testified during
trial that he was a legal resident of the United States.)

Id. at 862. The trial judge acknowledged that this conduct displayed bias, but refused a new trial
on the basis of Colorado Evid. R. 606(b) which “generally prohibits a juror from testifying as to
any statement made during deliberations in a proceeding inquiring into the validity of the verdict.”
Id. The Colorado Supreme Court affirmed, relying on Tanner v. United States, 483 U. S. 107, 107
S.Ct. 2739, 97 L. Ed. 2d 90 (1987), and Warger v. Shauers, U. S. ___, 135 S.Ct. 521, 190 L. Ed.
2d 422 (2014), which enforced the analogous Fed. R. Evid. 606(b).
Acknowledging that some of the Court’s precedents related to anti-Hispanic bias referred
to what happened in this case as ethnicity bias and others referred to it as racial bias, Justice
Kennedy chose to refer “to the nature of the bias as racial in keeping with the primary terminology
employed by the parties and used in our precedents.” Peña-Rodriguez, 137 S.Ct.at 863.
Justice Kennedy referred to the relevant rule as the “no-impeachment rule” and found its
origin in a decision of Lord Mansfield, Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785).
Recounting the history of the rule in this country, he noted the federal rule reached virtually its
present form when Federal Rules of Evidence enacted in 1975. As to the precise question whether
the Constitution might require an exception, he noted that the Court had rejected exceptions in
Tanner and Warger, supra, but in the latter case had reiterated that

[T]he no-impeachment rule may admit exceptions. As in [United
States v.] Reid [53 U.S. 361 (1852)] and McDonald [v. Pless, 238
U.S. 264 (1915)], the Court warned of “juror bias so extreme that,
almost by definition, the jury trial right has been abridged.” 574 U.
S., at ___-___, n. 3, 135 S.Ct. 521, 529, 190 L. Ed. 2d 422, 432. “If
and when such a case arises,” the Court indicated it would “consider

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whether the usual safeguards are or are not sufficient to protect the
integrity of the process.
Peña-Rodriguez, 137 S.Ct.at 867.
The Court then held
[W]here a juror makes a clear statement that indicates he or she
relied on racial stereotypes or animus to convict a criminal
defendant, the Sixth Amendment requires that the no-impeachment
rule give way in order to permit the trial court to consider the
evidence of the juror’s statement and any resulting denial of the jury
trial guarantee.
Id. at 869.

Peña-Rodriguez Announces a New Rule

A Supreme Court decision announces a new rule where the issue addressed was susceptible
to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-415 (1990). A new
rule is “a rule that ... was not dictated by precedent existing at the time the defendant’s conviction
became final.” Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288,
301 (1989)(emphasis in original). The Warden’s argument that Peña-Rodriguez states a “new”
rule is persuasive. Certainly the result was not dictated by precedent. As acknowledged in Justice
Kennedy’s opinion, as recently as Warger v. Shauers, ___ U.S. ___, 135 S.Ct. 521, 190 L. Ed. 2d
422 (2014), the Supreme Court had relied on the no-impeachment rule to prevent impeachment of
a verdict by a deliberating juror.
Petitioner seems not to contest this point, noting that “[p]rior to Peña-Rodriguez, the noimpeachment rule of Rule 606(b) would have prevented the Court[’s] considering this information
to impeach the jury’s verdict.” (ECF No. 271, PageID 17485.)
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Peña-Rodriguez Announced a Rule of Criminal Procedure

The Teague Court announced two exceptions to its non-retroactivity rule. First are new
decisions that place certain primary conduct beyond the power of the state to punish at all or certain
offenders beyond the power to the state to punish in certain ways. Second are decisions that
announce changes in criminal procedural rules so fundamental as to be labeled “watershed”
changes.
McKnight seeks to create a new exception to Teague non-retroactivity. He argues PeñaRodriguez is not a new rule of criminal procedure rule because it does not regulate “the manner of
determining the defendant’s culpability.” (Supplemental Memorandum, ECF No. 278, PageID
17526, relying on Montgomery v. Louisiana, 136 S.Ct. 718, 730 (2016), quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004).
In Montgomery the Court held that its decision in Miller v. Alabama, 567 U.S. 460 (2012),
that juvenile non-homicide offenders could not be sentenced to life imprisonment without the
possibility of parole was a substantive rule because it makes a certain class of offenders ineligible
for a certain kind of punishment. Because it was substantive, the States were constitutionally
obliged to apply it retroactively to cases on collateral review. In the language relied on by
McKnight, Justice Kennedy wrote:
Procedural rules, in contrast, are designed to enhance the accuracy
of a conviction or sentence by regulating “the manner of
determining the defendant’s culpability.” Schriro, 542 U.S., at 353,
124 S. Ct. 2519, 159 L. Ed. 2d 442; Teague, supra, at 313, 109 S.
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Ct. 1060, 103 L. Ed. 2d 334. Those rules “merely raise the
possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.” Schriro, supra, at
352, 124 S. Ct. 2519, 159 L. Ed. 2d 442. Even where procedural
error has infected a trial, the resulting conviction or sentence may
still be accurate; and, by extension, the defendant’s continued
confinement may still be lawful. For this reason, a trial conducted
under a procedure found to be unconstitutional in a later case does
not, as a general matter, have the automatic consequence of
invalidating a defendant’s conviction or sentence.

Montgomery v. Louisiana, 136 S.Ct. at 730. Thus the purpose of this language was to distinguish
between substantive rules which constitutionally must be applied retroactively and procedural
rules which need not be. Nothing in Montgomery suggests the Supreme Court would recognize a
new exception to Teague non-retroactivity for rules which are neither substantive nor procedural.
Schriro v. Summerlin, 542 U.S. 348 (2004), also provides no support for this new
exception. There the Ninth Circuit had applied Ring v. Arizona, 536 U.S. 584 (2002), retroactively
on habeas corpus to a case that had become final before Ring was decided. The Supreme Court
reversed, holding retroactive application of Ring was not permitted under Teague. Nothing in the
Court’s opinion supports a new exception from Teague non-retroactivity for rules like the one
announced in Peña-Rodriguez.
McKnight’s argument is that because Peña-Rodriguez comes into play after a verdict, it is
not “a procedure under which a trial is conducted” and has “no bearing on the manner of
determining a defendant’s culpability . . . .” On the contrary, the Peña-Rodriguez rule is entirely
in the service of eliminating racial bias in determining culpability. If it has its intended effect, it
will prevent jurors from hearing racist diatribes about defendants or witnesses from one another.
An appropriate analog would be Batson v. Kentucky, 476 U.S. 79 (1986), which provides a pre-

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trial2 procedure for eliminating race-based peremptory challenges to jurors. In Beard v. Banks,
542 U.S. 406 (2004), the Supreme Court held Batson was not to be applied retroactively. Batson
regulates the conduct of voir dire, before trial starts. Peña-Rodriguez regulates the procedure for
conducting motions for new trial after verdict. Neither Batson nor Peña-Rodriguez regulates the
conduct of trial between the swearing of the jury and its discharge after verdict or mistrial. But
both are intended to protect the integrity of the jury system by preventing verdicts based in any
way on race.
In Montgomery, Justice Kennedy acknowledged the impact of Justice Harlan’s
retroactivity analysis on the Teague Court. That analysis was first announced in full in Harlan’s
concurring opinion in Mackey v. United States, 401 U.S. 667 (1971). In Mackey, Harlan regretted
his concurrence in Linkletter v. Walker, 381 U.S. 618 (1965), noting that it had brought no
coherence to retroactivity doctrine and “the subsequent course of Linkletter became almost as
difficult to follow as the tracks made by a beast of prey in search of its intended victim.” Mackey,
401 U.S. at 676. He asserted that the choice of appropriate constitutional law to apply in a habeas
case depended “in the first instance of the nature, function, and scope of the adjudicatory process
in which such cases arise.” Id. at 682.
Habeas corpus always has been a collateral remedy, providing an
avenue for upsetting judgments that have become otherwise final. It
is not designed as a substitute for direct review. The interest in
leaving concluded litigation in a state of repose, that is, reducing the
controversy to a final judgment not subject to further judicial
revision, may quite legitimately be found by those responsible for
defining the scope of the writ to outweigh in some, many, or most
instances the competing interest in readjudicating convictions
according to all legal standards in effect when a habeas petition is
filed. Indeed, this interest in finality might well lead to a decision to
exclude completely certain legal issues, whether or not properly
2

Batson is applied during voir dire, before Double Jeopardy attaches when the trial starts by swearing the jury.

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determined under the law prevailing at the time of trial, from the
cognizance of courts administering this collateral remedy. This has
always been the case with collateral attacks on final civil judgments.
Id. at 682-83. In light of the nature of habeas, he laid out what he believed was the appropriate
scope for retroactive application of new rules in habeas: they should apply when they are new
“substantive due process rules” and when they command a procedure “implicit in the concept of
ordered liberty.” Id. at 693, citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)(Cardozo, J.).
With slight modification, the Court adopted Harlan’s approach in Teague.
McKnight’s argument here rests on recognizing a new category of retroactive criminal
rules for which there is no support in federal law. He cites no case in which any federal court had
recognized this new “criminal procedure that is not trial procedure” category. Moreover, adopting
it would seriously undermine the binary division of new constitutional rules that underlies Justice
Harlan’s analysis that brought coherence to retroactivity doctrine. McKnight’s argument is
unsupported by precedent or policy.

Peña-Rodriguez Announced a Constitutional, Not an Equitable, Rule

As an alternative to his proposed new exception to non-retroactivity, McKnight asserts
Peña-Rodriguez adopts a new equitable rule rather than a new constitutional rule, analogizing
Peña-Rodriguez to Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413
(2013).
McKnight is correct that Martinez and Trevino rest on the Supreme Court’s equitable
powers: the Court was very careful not to announce a new constitutional entitlement to effective
assistance of counsel in post-conviction proceedings. But McKnight offers no textual proof that

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the Peña-Rodriguez Court was exercising its equitable powers.

Indeed, the very language

McKnight quotes from Peña-Rodriguez belies that analysis: “A constitutional rule . . . is
necessary . . . .” (ECF No. 278, PageID 17528, quoting Peña-Rodriguez, 137 S.Ct. at 869
(emphasis supplied).) In order to reach the decision it did in Peña-Rodriguez, the Supreme Court
had to rely on the Constitution because the decision it was reviewing applied Colorado law despite
a federal constitutional objection to that application.

Peña-Rodriguez is Not a “Watershed” Rule of Criminal Procedure

Alternatively, McKnight seeks to bring himself within the Teague exception for
“watershed” new rules of criminal procedure (ECF No. 278, PageID 17530). As he acknowledges,
since Teague the Supreme Court has never found such a new rule to meet that standard. Whorton
v. Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the date Whorton was decided, the
only rule the Supreme Court has identified as qualifying under the “watershed” exception is that
adopted in Gideon v. Wainwright, 372 U.S. 335 (1963). While the new rule adopted in PeñaRodriguez is clearly important, it pales in significance to Gideon. As noted above, the Supreme
Court declined to apply Batson retroactively, although it undercut the traditional “peremptory”
nature of peremptory challenges.
In arguing for retroactive application of Peña-Rodriguez, McKnight relies on Tharpe v.
Sellers, 138 S.Ct. 545, 199 L. Ed. 2d 424 (2018). In a per curiam GVR decision in that case, the
Supreme Court granted Tharpe a certificate of appealability that had been denied by the Eleventh
Circuit without citing Peña-Rodriguez. Justice Thomas in dissent thought that “no reasonable
jurist could argue that Peña-Rodriguez applies retroactively on collateral review.” Id. at 551.

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Perhaps the majority disagreed, but it did not say so. Perhaps the majority wanted the Eleventh
Circuit to decide retroactivity in the first instance. Perhaps the Teague issue did not occur to the
majority despite the dissent. Perhaps the majority’s inadvertence parallels that of the Sixth Circuit:
without discussing Teague, the Sixth Circuit applied Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616
(2016), retroactively in Hutton v. Mitchell, 839 F.3d 486 (2016), but was itself reversed GVR in
Jenkins v. Hutton, 582 U.S. ___, 137 S.Ct. 1769 (2017). What Tharpe means for Peña-Rodriguez
retroactivity therefore remains to be seen.

Allowing the Ohio Courts to Decide Retroactivity in the First Instance

If this Court rejects his arguments about Teague nonretroactivity, McKnight wants us to
“permit the state court to address the retroactivity of Peña-Rodriguez in the first instance.” (ECF
No. 278, PageID 17530.)
In part, McKnight expresses his hope that the Ohio courts will grant broader retroactivity
under Ohio law than the federal courts, which the Constitution does not prohibit. Danforth v.
Minnesota, 552 U.S. 264 (2008). In part he also relies on federal exhaustion doctrine for the
proposition that state courts should be given a first opportunity to review his federal claim that
Peña-Rodriguez is retroactive. (ECF No. 278, PageID 17531, citing O'Sullivan v. Boerckel, 526
U.S. 838, 846-7(1999).)
In order to obtain this first state review, McKnight says he will file a motion to hold this
case in abeyance while he exhausts this claim. Id. This is the same litigation strategy evinced by
the Ohio capital habeas bar in general in their attempts to have capital habeas cases stayed while
the Ohio courts decided the retroactivity of Hurst. Judges of this Court uniformly rejected that

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approach: Smith v. Pineda, Case No. 1:12-cv-196, 2017 WL 631410 (S.D. Ohio Feb. 16, 2017);
Henness v. Warden, Case No. 2:14-cv-2580, 2017 WL 749198 (S.D. Ohio Feb. 27, 2017); Gapen
v. Bobby, Case No. 3:08-cv-280, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15, 2017);
Campbell v. Jenkins, Case No. 2:15-cv-1702, 2017 U.S. Dist. LEXIS 130803 (S.D. Ohio Aug. 16,
2017); McKnight v. Warden, Case No. 2:09-cv-59, 2017 WL 631411 (S.D. Ohio Feb. 15, 2017);
Chinn v. Jenkins, Case No. 3:02-cv-512, 2017 WL 631412 (S.D. Ohio Feb. 13, 2017); Davis v.
Bobby, Case No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sept. 25, 2017); see also
Lindsey v. Jenkins, No. 1:03-cv-702 (S.D. Ohio Sept. 25, 2017)(Sargus, J.); Twyford v. Bradshaw,
No. 2:03-cv-906 (S.D. Ohio Sept. 12, 2017)(Marbley, J.); Myers v. Bagley, No. 3:04-cv-174 (S.D.
Ohio, Sept. 12, 2017)(Marbley, J.); Robb v. Ishee, No. 2:02-cv-535 (S.D. Ohio, Sept. 12,
2017)(Marbley, J.), including in this very case. The Sixth Circuit also found Hurst was not
retroactive without suggesting the question should first have been put to the state courts. In re
Coley, 871 F.3d 455 (6th Cir.2017).
It would be premature to decide now a motion to stay which has not yet been filed.
However, the in authorizing such stays in Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court noted “[s]taying a federal habeas petition frustrates AEDPA’s objective of encouraging
finality by allowing a petitioner to delay the resolution of federal proceedings. Id. at 277-78. In
initially moving to amend, McKnight’s counsel asserted “the case is still in its early stages.” (ECF
No. 271, PageID 17485). The case has been pending for almost ten years. In January 2016 the
Magistrate Judge advised the parties he regarded the case as ripe for decision (ECF No. 196). All
activity in the case since then has involved proposed new claims. This state of the docket raises
serious questions about whether further delay is warranted.

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Conclusion

Based on the foregoing analysis, the Motion for Leave to Amend is DENIED.

May 22, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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