Clinton v. Warden Southeastern Correctional Complex

Filing 20

ORDER granting Petitioner's 7 17 Motions to Stay. Signed by Magistrate Judge Terence P. Kemp on 6/27/17. (sem)(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
MARVIN CLINTON,

CASE NO. 2:16-cv-0573

Petitioner,
v.

CHIEF JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE KEMP

BRIAN COOK, WARDEN,
Respondent.
ORDER
Petitioner, Marvin Clinton, a state prisoner, has filed this action seeking a writ of
habeas corpus pursuant to 28 U.S.C. §2254. The case is before the Court by way of
Petitioner’s a motion to stay (Doc. 7) and second motion to stay (Doc. 17). Respondent
opposed the first motion to stay and also expressed opposition to that motion in the
Return, but Respondent did not respond to the second motion. For the following
reasons, the Court GRANTS the motions to stay.
I. Procedural History
Only a brief procedural history is needed in order to place the motion to stay into
context. Petitioner was convicted in the Court of Common Pleas of Franklin County,
Ohio, of murder, tampering with evidence, and having a weapon while under a
disability. He was given an aggregate sentence of thirty-one years to life in prison. He
timely but unsuccessfully appealed his conviction, and also filed a motion to reopen his

appeal under App.R. 26(B), which was denied, and a post-conviction petition under
O.R.C. §2953.21. That latter petition is still pending.
In his current habeas corpus petition, which Respondent agrees was timely filed,
Petitioner raises only two grounds for relief: ineffective assistance of appellate counsel
and a claim based on the weight of the evidence. Respondent construes that latter claim
to include certain instances of alleged ineffective assistance of trial counsel. In the
Return (Doc. 12), Respondent argues that the ineffective assistance of trial counsel claim
and sufficiency of the evidence claim lack merit and that the ineffective assistance of
appellate counsel claims were procedurally defaulted. Respondent does not contend
that any of these claims are unexhausted, and the Court agrees that they are not.
Consequently, the current petition is not a “mixed” petition but rather one containing
only claims which have been fully exhausted (although perhaps, as to some, defaulted)
in the state courts.
The Court makes this point because it is pertinent to the request for a stay. Stays
of mixed petitions, which contain both exhausted and unexhausted claims, are
governed by Rhines v. Weber 544 U.S. 269 (2005), which held that the Court could stay,
rather than dismiss, a mixed petition if the petitioner could show good cause for the
prior failure to exhaust and if the unexhausted claims were potentially meritorious.
When a petition does not contain any unexhausted claims, however - as is the case here
- the Court has no discretion to dismiss the petition, but may decide to stay it on
equitable grounds. A good discussion of this concept can be found in Nowaczyk v.
-2-

Warden, New Hampshire State Prison, 299 F.3d 69 (1st Cir. 2002), where the court held that
a district could was not required to, but was allowed to, stay its decision on fully
exhausted claims when a challenge to the underlying conviction was still pending in the
state courts. It pointed out that “[c]onsiderations of judicial economy support the
district court's decision to withhold decision on claims that could have been mooted by
the pending state proceedings.” Id. at 78. That policy has been applied by district
courts within the Sixth Circuit. See, e.g., Magee v. Brewer, 2017 WL 2626974 (E.D. Mich.
June 19, 2017)(staying fully exhausted petition to allow exhaustion of additional claims
in state court). As the Magee court points out, such a decision does not prejudice the
respondent, and the absence of a stay might well prejudice the petitioner if the federal
proceedings were completed before the state proceedings; under those circumstances,
the petitioner “‘would have the heavy burden of satisfying 28 U.S.C. § 2244(b)(2)'s
second-or-successive-petition requirements’ should he seek habeas relief on his new
claims.” Id. at *2, quoting Thomas v. Stoddard , 89 F.Supp.3d 937, 943 (E.D. Mich. 2015).
Respondent’s main argument against a stay is that the last order entered by the
Franklin County Court of Common Pleas was an order authorizing funds for a DNA
expert.

Respondent asserts that, based on the state court of appeals’ decision in

Petitioner’s case, State v. Clinton, 2014 WL 6436228 (Franklin Co. App. Nov. 18, 2014),
DNA evidence does not seem to be particularly relevant to this case. However, the
post-conviction petition in question (see Return, Ex. 20) raises multiple claims of
ineffective assistance of trial counsel, any one of which has the potential to gain
-3-

Petitioner a new trial and effectively to moot the federal case.

Under these

circumstances, the most appropriate exercise of discretion is to stay this case pending
the outcome of the state post-conviction petition, and to permit Petitioner to amend the
petition to include those claims should the state courts find against him.

He is

reminded, however, of the need to exhaust his post-conviction remedy through the state
court system before moving to amend.
For all of these reasons, the motions to stay (Docs. 7 and 17) are GRANTED.
This case is stayed pending completion of Petitioner’s post-conviction remedy in state
court. Petitioner is further granted leave to amend his federal habeas corpus petition
within thirty days after completion of the state court proceedings. If he fails to do so,
the stay will terminate, and the Court will proceed to decide the claims currently
contained in the habeas corpus petition. Respondent shall advise the Court every 90
days of the status of the state court proceedings.

/s/ Terence P. Kemp
United States Magistrate Judge

-4-