Poulton v. Warden, Ross Correctional Institution

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Chief Judge Edmund A. Sargus on 8/3/16. (lvw)(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

ADAM C. POULTON,
CASE NO. 2:15-CV-02352

Petitioner,

CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Elizabeth A. Preston Deavers

WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.
OPINION AND ORDER

On June 1, 2016, the Magistrate Judge issued a Report and Recommendation

recommending that Petitioner's Motion to Stay (ECF No. 9) be granted, that Respondent's
Motion to Dismiss on groimds of exhaustion be denied, and that Petitioner be directed to advise

the Court of the status of state court proceedings on his petition for post-conviction relief every
sixty (60) days. (ECF No. 19.) Although the parties were advised of the right to object to the

Magistrate Judge's Report and Recommendation, and of the consequences of failing to do so, no
objections have been filed.

Petitioner has filed a Motion to AmendPetitionfor Writ ofHabeas Corpus and Motion to
Supplement the State Court Record. (ECF No. 20.) Petitioner seeks to amend his § 2254

petition to include a claim of ineifectiveassistance of trial counsel based on his attorney's failure
to investigate a defense witness who could have established an alibi defense and failure to file a

notice of alibi. Petitioner acknowledges that he has never presented such a claim to the state
courts. He contends, however, that he has established cause for any procedural default based on
the denial of coimsel in post-conviction proceedings. Petitioner has attached to his motion the
Affidavit ofJim Barnard. (PagelD# 868.) Barnard indicates that, on January 10, 2013, he was

working as a bartender at the Puthnam Tavern Bar & Grill in Zanesville, Ohio, and that
Petitioner was at the bar between the hours of 1:00 and 3:00 a.m. In April 2013, Barnard made

several attempts to contact Petitioner's attorney, Todd A. Long, and left several messages at
counsel's office, but Mr. Long never returned Barnard's calls. {Id.)

Petitioner moves to

supplement the record with Barnard's affidavit in support of his proposed amended claim of
ineffective assistance of counsel.

Respondent opposes Petitioner's request. It is the position of the Respondent that this
Court should deny Petitioner's motion to amend based on Petitioner's undue delay, and because

any amendment would be futile, as Petitioner has procedurally defaulted his proposed amended
claim of ineffective assistance of counsel. See Respondent's Response to Petitioner's Second
Motion to AmendPetition and Supplement the State Court Record. (ECF No. 21.)
Given that this matter will be stayed until Petitioner exhausts his claims, his Motion to

Amend Petitionfor Writ ofHabeas Corpus and Motion to Supplement the State Court Record,

(ECF No. 20), is DENIEDWITHOUT PREDJUCIE. Petitioner may renew his request, if he
so chooses, when he has exhausted his state court remedies and retums to this Court. The Court

then, if appropriate, will address Respondent's arguments that the amendment is both unduly
delayed and futile.

The Report and Recommendation (ECF No. 19) is ADOPTED and AFFIRMED.

Petitioner's Motion to Stay (ECF No. 9) is GRANTED. Respondent's Motion to Dismiss (ECF
No. 6) is DENIED. Petitioner shall advise the Court of the status of state court proceedings
every sixty (60) days. Failure to do so may result in dismissal of this action.

IT IS SO ORDERED.

EDMl^pvA. SARGUS, JR.
Chief United States District Judge