Akram v. Warden, Pickaway Correctional Institution

Filing 20

ORDER denying as moot 17 Motion to Stay Proceeding/Hold in Abeyance, DENYING Petitioner's Objection to the Report and Recommendation. This action is DISMISSED, without prejudice to re-filing, upon completion of state court proceedings. Signed by Judge Algenon L. Marbley on 3/22/2016. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALEEM M. AKRAM,
CASE NO. 2:14-CV-01432
JUDGE ALEGNON L. MARBLEY
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On February 1, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed.

(ECF No. 16).

On that same date, Petitioner filed a Motion to Stay

Proceeding/Hold in Abeyance (ECF No. 17). He also has filed an Objection to the Magistrate
Judge’s Report and Recommendation. (ECF No. 19).
For the reasons that follow, Petitioner’s Motion to Stay Proceeding/Hold in Abeyance
(ECF 17) is DENIED.

This action is DISMISSED, without prejudice to re-filing, upon

completion of state court proceedings. Petitioner’s Objection (ECF No. 19) is DENIED, as
moot.
This case involves Petitioner’s underlying criminal convictions made pursuant to his
January 15, 2013, guilty plea in the Fairfield County Court of Common Pleas to two counts of
aggravated trafficking in drugs, and two counts of possession of drugs. (ECF No. 11-1, PageID#
157-58.) On September 2, 2014, Petitioner filed the instant habeas corpus petition, asserting that
he was denied his right to have a jury determine his sentence; that the trial court violated Rule 11
of the Ohio Rules of Criminal Procedure by advising him that his sentences could be run
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consecutively to each other; that he was denied the effective assistance of trial counsel; that he
was denied the effective assistance of appellate counsel; that the trial court improperly denied his
motion to suppress evidence; and that the trial court violated Blakely v. Washington, 542 U.S.
296 (2004) by imposing the maximum sentence. The Magistrate Judge recommended dismissal
of Petitioner’s claims as procedurally defaulted.
However, Petitioner indicates that, on December 10, 2015, the trial court granted his
motion to withdraw his guilty plea, and that the matter was scheduled for a “pretrial hearing” on
January 29, 2016. Objection (ECF No. 19, PageID# 541.) Petitioner therefore requests that the
Court hold proceedings in abeyance, or dismiss this action without prejudice to re-filing upon
completion of state court proceedings. (PageID# 543.) Respondent acknowledges that the trial
court has granted Petitioner’s motion to withdraw his guilty plea and appointed counsel to
represent Petitioner on the criminal charges which now remain pending against him.
Under these circumstances, this case is not ripe for consideration by this Court.
Petitioner no longer remains convicted under criminal charges under attack.

A stay of

proceedings would not be appropriate since the trial court has granted Petitioner’s motion to
withdraw his guilty plea. Further, it does not appear that the one-year statute of limitations
would bar Petitioner from re-filing this habeas corpus petition after completion of state court
proceedings.
Therefore, Petitioner’s Motion to Stay Proceeding/Hold in Abeyance (ECF 17) is
DENIED. This action is DISMISSED, without prejudice to re-filing, upon exhaustion of state
court remedies. Petitioner’s Objection (ECF No. 19) is DENIED, as moot.

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IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

DATED: March 22, 2016

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