Johnson v. Warden Chillicothe Correctional Institution

Filing 9

ORDER granting 2 Motion to Stay Proceedings Pending Exhaustion of Claims in the Ohio Supreme Court. Petitioner is DIRECTED to advise the Court within twenty (20) days of the exhaustion of his claims. Signed by Magistrate Judge Terence P. Kemp on 4/18/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION BRIAN A. JOHNSON, Petitioner, CASE NO. 2:16-CV-985 CHIEF JUDGE EDMUND A. SARGUS, JR. MAGISTRATE JUDGE KEMP v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. ORDER Petitioner a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and Motion Requesting Stay and Abeyance of Unexhausted States Remedies Pursuant to 28 U.S.C. § 2254(b)(1)(A). (Doc. 2.) Respondent has submitted a Response. (Doc. 7.) Petitioner has filed a Reply. (Doc. 8.) For the reasons that follow, Petitioner’s request for a stay (Doc. 2) is GRANTED. The parties indicate that Petitioner has presented a mixed petition for this Court’s review. Further, it is the position of the Respondent that a stay of proceedings is appropriate under the Supreme Court’s decision in Rhines v. Weber, 544 U.S. 269 (2005), and Respondent therefore does not oppose Petitioner’s request for a stay. It appears from the record that at least several of Petitioner’s claims remain pending in the Ohio Supreme Court. Further, Respondent indicates that the statute of limitations likely will bar Petitioner from re-filing this action, should the Court dismiss the Petition without prejudice pending Petitioner’s exhaustion of his claims in the state courts. Therefore, the Court GRANTS Petitioner’s unopposed request for a stay of proceedings pending exhaustion of his claims in the Ohio Supreme Court. Petitioner is DIRECTED to advise the Court within twenty (20) days of the exhaustion of his claims. Failure to do so may result in the dismissal of this action. IT IS SO ORDERED. /s/ Terence P. Kemp United States Magistrate Judge 2

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