Cauthon v. Warden, Marion Correctional Institution

Filing 23

OPINION AND ORDER denying 16 Petitioner's Motion for Stay of Proceedings; denying 17 , 21 Petitioner's Motions for Production of Trial Transcripts. Petitioner may have 21 days in which to file a traverse to the 14 Return of Writ. Signed by Magistrate Judge Norah McCann King on 9/7/2017. (er)(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
NASSIR CAUTHON,
Petitioner,
Case No. 2:17-cv-272
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
WARDEN, MARION
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
Petitioner, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This matter is before the Court on Petitioner’s Motion for Stay of Proceedings (Doc. 16) and on
Petitioner’s Motion(s) for Production of Trial Transcripts (Docs. 17, 21). For the following
reasons, these motions are DENIED. Petitioner may have 21 days in which to file a traverse to
the Return of Writ (Doc. 14). See Order (Doc. 19).
Facts and Procedural History
Petitioner challenges his June 2006 convictions, following a jury trial in the Franklin
County Court of Common Pleas, on charges of rape and gross sexual imposition. The Ohio
Court of Appeals for the Tenth District summarized the facts and procedural history of the case
as follows:
Defendant-appellant, N.D.C.,1 appeals from the judgment of the
Franklin County Court of Common Pleas reinstating the judgment
of conviction following a remand from this court.
On June 17, 2005, appellant was indicted on four counts of rape, in
violation of R.C. 2907.02, and one count of gross sexual
1

Initials were used throughout the court’s opinion, “[f]or purposes of anonymity. . . .” State of Ohio v. [N.D.C.],
2008 –Ohio- 6120, 2008 WL 5049761, *6, (Ohio App. 10th Dist. Nov. 25, 2008).

imposition, in violation of R.C. 2907.05. A jury trial began on June
15, 2006. The jury returned verdicts finding appellant guilty of
three counts of rape and one count of gross sexual imposition.
Subsequent motions for acquittal and a new trial were denied by
the trial court. By judgment entry filed July 3, 2006, the trial court
imposed consecutive life sentences for the rape convictions and a
five-year consecutive sentence for the gross sexual imposition
conviction. Appellant timely appealed to this court and asserted a
single assignment of error. State v. N.D.C., Franklin App. No.
06AP–790, 2007–Ohio–5088 (“N.D.C. I ”).
The underlying facts of the convictions were set forth in N.D.C. I,
as follows:
In April 2005, “DR,” then age 12, resided with his mother
(hereafter “DR's mother”) and his two younger stepbrothers, “DC,”
age seven, and “NC,” age eight, in Columbus, Ohio. Appellant is
the father of DC and NC, and the stepfather of DR; appellant
began dating DR's mother when DR was three years of age.
On April 1, 2005, appellant moved back to DR's mother's
residence after being away for a period of time. The state's theory
of the case was that appellant sexually assaulted DR on three
separate occasions, over an approximate two-week period in early
April 2005, while DR's mother was at work. DR testified that two
of the incidents occurred when he was cleaning the bathroom;
specifically, on both occasions, appellant entered the bathroom,
pulled down DR's pants, and inserted his finger inside DR's anus.
DR related a third incident in which appellant told him to go to his
mother's bedroom, take off his clothes, and lie on the bed. DR
testified that, as he was lying face down on the bed, appellant got
on top of him and “put his penis inside my butt.” (Tr. Vol. II, at
266.)
DR's younger brothers both testified regarding the alleged incident
in the bedroom. Specifically, DR's brother, NC, testified that he
observed his “dad on top of my brother” while looking through a
vent located in his bedroom. (Tr. Vol. III, at 445.) DR's other
brother, DC, testified that he looked through his mother's bedroom
door and observed his father on top of DR on the bed. According
to DC, his father “[p]ut his private part in my brother's behind.”
(Tr. Vol. III, at 478.) Appellant noticed DC standing near the
bedroom door, and he grabbed a belt and struck DC on the legs.
Sha Clark is a medical social worker at Children's Hospital. On
May 23, 2005, Clark conducted an interview with DR at Children's
2

Hospital. During the interview, DR indicated that, on several
occasions, he had been a victim of sexual abuse by appellant. DR
related that appellant had touched his private parts, and he
described different incidents occurring in the bathroom and one
incident that occurred in the bedroom.
Dr. Ellen McManus, an emergency medical physician at Children's
Hospital, conducted a physical examination of DR on May 23,
2005. The physician noted nothing abnormal during the
examination.
In April 2005, DR's mother was employed and worked first shift
hours. Approximately two weeks after appellant had moved back
to her residence, DR's mother noticed some marks on DC's legs.
She asked NC about the marks on DC's legs, and NC told her
appellant “had whooped him for getting in trouble at school.” (Tr.
Vol. III, at 528.) Appellant moved out of the house on April 15,
2005, and, on May 16, 2005, DR's mother learned of the alleged
incident involving appellant and DR. She phoned the police, and
subsequently took the boys to Children's Hospital.
On cross-examination, DR's mother acknowledged that she had
concerns about appellant's sexuality, fearing he might do
something sexually inappropriate to her children. When she asked
DR whether any inappropriate activity had occurred, he repeatedly
told her nothing had happened.
The first witness for the defense was an uncle of DR's (hereafter
“DR's uncle”). In the spring of 2005, DR's uncle had a
conversation with DR about alleged sexual contact, and DR denied
having any such contact with appellant. DR's uncle testified that
DR told him about threats his mother made to him (DR).
Kathleen Cooke is a private investigator who investigated the
allegations at the request of defense counsel. As part of the
investigation, Cooke interviewed DR's mother, who informed
Cooke that she started a new job on April 7, 2005.
On May 17, 2005, Columbus Police Officer Wendell J. Tolber
responded to a 911 call at an address on Maryland Avenue.
According to Officer Tolber's report, the mother of an alleged
victim (DR) told the officer that her husband had molested the
victim, and that the “[v]ictim stated the incident occurred the end
part of 2004.” (Tr. Vol. IV, at 612.) A domestic violence detective
was contacted and advised of the incident, but the detective

3

indicated he would not be responding due to the span of time
involved.
At trial, the parties entered into a stipulation that Franklin County
Children Services caseworker Robin Glove, if called to testify,
would state that she interviewed DR on May 6, 2005. During that
interview, DR denied any touching or sexual contact by his
stepfather. Further, DR did not make eye contact with the
caseworker during the interview, and had his back to her while he
was talking.
Id. at ¶ 3–13.
In N.D.C. I, appellant raised one assignment of error, which
essentially alleged the trial court's interpretation of Ohio's rape
shield law precluded him from offering a defense that there was an
alternative explanation for the conduct alleged. Specifically,
appellant argued the alleged victim, DR, was involved in several
instances of digital anal sexual activity prior to the alleged conduct
in the instant case. In support, appellant pointed to two 2003
reports from Children Services stating that “DR ‘put his finger up
DC's butt’” and that DR's cousin committed anal penetration
against DR and another relative. Id. at ¶ 16.
After review, this court concluded the trial court's blanket
exclusion of the evidence at issue, solely on the basis that such
evidence did not fit within one of the exceptions under the rape
shield statute, was error. This court held, based on State v. Gardner
(1979), 59 Ohio St.2d 14, 391 N.E.2d 337, the trial court was
required to balance the state's interest which the statute is designed
to protect against the probative value of the excluded evidence, and
that appellant was entitled to have the trial court assess whether the
evidence was relevant to the theory presented, and, thus,
constituted a material fact, and whether application of the rape
shield statute was unconstitutional as applied to the facts. This
court then stated:
While we conclude that the trial court erred in not
engaging in the requisite balancing under Gardner,
we decline to reverse for a new trial at this time.
Rather, in light of the record on appeal, we remand
this matter for the trial court to conduct a hearing
and, in the first instance, engage in the appropriate
balancing analysis to determine whether appellant's
constitutional right to confrontation requires that
evidence as to prior alleged sexual activity should
4

have been admitted, even assuming it would
otherwise be excluded by the rape shield statute. If,
upon remand, the trial court determines that
appellant's right to confrontation outweighs the
state's interest in excluding this evidence, and that
the probative value of the evidence at issue
outweighs its prejudicial effect with respect to a
material fact at issue, the trial court is instructed to
vacate appellant's conviction and grant a new trial.
Otherwise, the trial court shall reinstate the
judgments of conviction. See, e.g., State v. Boggs
(1992), 63 Ohio St.3d 418, 424, 588 N.E.2d 813
(following defendant's trial and conviction, matter
remanded to trial court to conduct in camera
hearing to determine, in first instance, whether
evidence proffered by defense was properly
excluded as involving activity protected by rape
shield statute).
Id. at ¶ 36, 391 N.E.2d 337.
Upon remand from this court, the trial court conducted a hearing
on December 21, 2007. Neither party offered new evidence, but
both parties presented arguments based on relevant case law and
the evidence admitted and/or offered at trial. After the hearing, the
trial court rendered a decision on February 19, 2008, stating, in
part:
* * * The FCCS March 5, 2003, report would be
relevant and probative if the allegations were
substantiated. However, this incident was
investigated and all involved denied the behavior.
The probative value of this unsubstantiated report is
nil. Most certainly there is no clear proof that the
allegations in the March 5, 2003, FCCS report
actually occurred. When weighted against the
State's interest protected by the Rape Shield Law,
the State's interest prevails.
***
* * * The FCCS March 17, 2003, report concerning
DR's cousin committing anal penetration of DR is
probative and relevant. * * *

5

The evidentiary value of the FCCS report must be
considered in light of the eyewitness testimony of
these three children. * * * When this diminished
evidentiary value is compared to the State's interest
protected by the Rape Shield Statute, the State's
interest prevails.
***
With all due respect to the appellate court, the child
victim's testimony concerning the sexual conduct
itself was not very detailed. This is common with
child sexual assault victims. DR's testimony was,
however, detailed concerning the events
surrounding the assaults, i.e., events leading up to
and following, locations, witnesses to the bedroom
assault and what happened to the witnesses after the
fact. Having seen and heard the trial it is apparent to
this Court that the “details” referenced in Clark's
testimony and the prosecution argument were not
sexual conduct detail but rather situational detail.
When viewed in this light, the evidence of alleged
prior sexual experiences of the child victim is much
less important to the defendant's case. The
defendant presented a vigorous defense. DR's
mother, DR's uncle, and through stipulation, Robin
Glove of FCCS all testified that DR denied any
sexual contact by his stepfather. Dr. Ellen
McManus noted nothing abnormal during the
physical examination of DR. DR's mother admitted
that DR's brother, NC, told her originally that
appellant “had whooped him for getting in trouble
at school.” (Tr. Vol. III, at 528.) Defense counsel
thoroughly cross examined DR's mother on matters
of bias and prejudice toward the defendant and
coaching of the child witnesses. It is simply untrue
that the defendant was left defenseless without the
evidence of DR's alleged prior sexual experience.
Accordingly, when this Court balances the State's
interest which the Rape Shield Statute is designed to
protect against the probative value of the excluded
evidence, the State's interest prevails.
The judgment of conviction is reinstated.

6

It is from this judgment appellant appeals and brings the following
two assignments of error for our review:
First Assignment of Error:
Mr. Cauthon was denied the right to confront and cross-examine
witnesses, a fair trial, and due process of law, in violation of the
fifth, sixth and fourteenth amendments to the U.S. Constitution and
Article I, §§ 10 and 16 of the Ohio Constitution, when the court
improperly limited cross-examination to preclude evidence of prior
sexual misconduct by the victim relevant to support the defense
theory of the case.
Second assignment of Error:
Mr. Cauthon was denied due process of law, in violation of the
fifth, sixth and fourteenth amendments to the U.S. Constitution and
Article I, §§ 10 and 16 of the Ohio Constitution, when the
indictment failed to allege a culpable mental state.
State v. N.D.C., No. 08AP-217, 2008 WL 5049761, at *1-4 (Ohio App. 10th Dist. Nov. 25,
2008). On November 25, 2008, the appellate court affirmed the judgment of the trial court. Id.
Petitioner did not timely appeal; however, on March 4, 2009, the Ohio Supreme Court granted
Petitioner’s motion for a delayed appeal. State v. N.D.C., 121 Ohio St.3d 1406 (2009). On July
1, 2009, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. N.D.C.
1454 (Ohio 2009).
Petitioner pursued additional state collateral action.
Defendant filed [a] motion for leave to file a delayed motion for
new trial on December 5, 2014, asserting that he had recently
discovered that the alleged victim stated “under oath, that he
testified untruthfully at trial and the offenses of conviction did not
occur.” (Motion for Leave, 1.) Defendant asserted that, although
D.R. admitted that he “came forward a couple of months after the
trial and stated he was not sexually abused by [defendant],” no one
“did anything with [D.R.'s] recantation until it came to the
attention of Defendant in the past 2 years.” (Motion for Leave, 6.)
Defendant noted that D.R., D.C., and N.C. first met with
defendant's current counsel on August 2, 2013, and that the boys
signed affidavits memorializing their recantations on November
7

21, 2014. Defendant accordingly asserted that the evidence
“presented in these affidavits was not available at the time of trial
and could not have been reasonably discovered through the
exercise of due diligence,” as “[o]ne can not force people to tell the
truth.” (Motion for Leave, 7.)
In their November 21, 2014 affidavits, D.R., D.C., and N.C. all
stated that they had recanted their trial testimony shortly after the
trial. D.R. averred that, “[w]ithin a couple of months after the trial”
he “again told the truth that [he] was not sexually abused by
[defendant].” (D.R. Affidavit, ¶ 10.) D.R. explained that, when he
initially denied being sexually abused by defendant, his mother
“whipped [him] with a belt and with her hands * * * she punched
[him] in [his] face and she demanded that [he] tell the truth. This
meant that [he] was coached by her to lie about [his] stepfather.”
(D.R. Affidavit, ¶ 6.) D.R. explained that he “felt a huge amount of
pressure from [his] mom and [he] finally gave in and said what she
wanted [him] to say.” (D.R .Affidavit, ¶ 7.) D.R. stated that, for as
long as he could remember, his mother had “falsely accused people
of sex abuse.” (D.R. Affidavit, ¶ 9.) D.R. averred that defendant
was “in prison for something he did not do.” (D.R. Affidavit, ¶ 11.)
N.C. stated that he “told [his] mom 1 month after trial that [his]
dad [was] innocent.” (N.C. Affidavit, ¶ 9.) D.C. averred that “[f]or
years [he][has] been telling others that [his] father never molested
[his] brother.” (D.C. Affidavit, ¶ 9.) N.C.'s and D.C.'s affidavits
corroborated D.R.'s statements regarding their mother's influence
on their testimonies.
The state filed a memorandum contra to the motion for leave on
December 11, 2014. The state noted that defendant had knowledge
of the purported recantations more than five years ago, because “in
June 2010, the defendant submitted to the Court a letter from the
defendant's former attorney, dated December 1, 2009, which
detailed the inquiry former counsel had conducted into the same
claim defendant now presents, i.e., that the victim and witnesses
had recanted their testimony.” (Memo Contra, 11.) The state thus
asserted that defendant failed to act with reasonable diligence after
discovering this evidence.
The record contains a December 1, 2009 letter from attorney
Richard Cline. In the letter, Cline explains that, after he was
appointed to represent defendant in his first appeal, defendant
contacted Cline and asked if he would be “willing to assist
[defendant] in preparing and filing a motion for new trial based on
newly discovered evidence.” (Cline Letter, 1.) Cline stated that the
“basis for the motion was that the alleged victim and the two
8

witnesses * * * had recanted their trial testimony and were now
willing to testify that [N.D.C.] did not commit the criminal acts
with which he was charged.” (Cline Letter, 1.) Cline stated that he
“explained to [N.D.C.] that he would have to retain counsel” to file
the motion for new trial, and that Cline would not work on the
matter until his “retainer was paid.” (Cline Letter, 1–2.) Defendant
eventually paid Cline, and Cline was able to secure one meeting
with the boys.
During that meeting, “the boys made statements to [Cline] that
raised issues about whether they were truly recanting their trial
testimony. The boys did state that their trial testimony was false,
but were unable or unwilling to explain why they gave false
testimony at trial.” (Cline Letter, 2.) Cline felt that without an
explanation, the boys' recantations would not support a motion for
a new trial based on newly discovered evidence. Cline was never
able to speak with the boys again, however, as their mother refused
to make them available for a second interview. Cline noted that,
“[a]t this point, it may be that the only affidavit that will be
available to [N.D.C.] to support his motion will be my affidavit
recounting the conversation I had with each of the boys.” (Cline
Letter, 3.) Defendant eventually fired Cline and sought a refund of
the retainer fee.
The record also contains a May 9, 2010 handwritten letter from
defendant to the trial court judge. In the letter, defendant notes that
the judge may be unaware “of the most recent recantations
involved with [the] case,” and informs the judge that “all three kids
went to my former lawyer Richard Cline and told him that they
lied at trial.” (Defendant's Letter to Judge Hogan, 1.) Defendant
asked the judge if he could “subpoena the family to your chambers
for a deposition,” to show that the “kids were pressured into lieing
[sic] in the first place.” (Defendant's Letter to Judge Hogan, 2.)
The trial court denied defendant's motion for leave to file a delayed
motion for new trial on December 30, 2014. The court reviewed
the record, and observed that defendant “had knowledge of the
purported recantations more than five years ago.” (Decision, 3.)
The court noted that, “[s]pecifically, four and one-half years ago,
in June 2010, the defendant submitted to the Court a letter from the
defendant's former attorney, dated December 1, 2009, which
detailed the inquiry former counsel had conducted into the same
claim defendant now presents.” (Decision, 3.) The court also
observed that “defendant's current counsel asserts that he was
aware of the defendant's claim more than one year ago.” (Decision,
3.) As such, the court concluded that, “[u]nquestionably, the
9

defendant failed to act with reasonable diligence given his failure
to present this information within a reasonable time after
discovering it.” (Decision, 4.)
State v. N.D.C., No. 15AP-63, 2015 WL 5209424, at *3 (Ohio App. 10th Dist. Sept. 8, 2015).
On September 8, 2015, the appellate court affirmed the trial court’s denial of Petitioner’s motion
for leave to file a delayed motion for new trial. Id. On April 20, 2016, the Ohio Supreme Court
declined to accept jurisdiction of the appeal. State v. N.D.C., 145 Ohio St.3d 1446 (2016).
On March 29, 2017, Petitioner filed this action under 28 U.S.C. § 2254.2 He asserts that
he was denied the right to confront and cross-examine the witnesses against him in violation of
his right to due process (claims one and two); that he was denied a fair trial because the
Indictment failed to allege any culpable mental state (claim three); and that he is actually
innocent of the charges in view of recantations by the alleged victim and child witnesses, and the
trial court erred in denying his delayed motion for a new trial (claim four). On April 3, 2017,
Petitioner amended the Petition to include affidavits from the alleged victim and witnesses.
(Doc. 5, PageID# 42-47). Respondent contends that this action is barred by the one-year statute
of limitations established by 28 U.S.C. § 2244(d) and, alternatively, that Petitioner’s claims are
procedurally defaulted or without merit.
Motions for Production of Transcripts
Petitioner has filed two motions asking that Respondent be required to provide a free
copy of transcripts from his trial, sentencing, and December 12, 2007, Gardner hearing. (Doc.
17, PageID# 1431). Respondent attached a copy of these trial transcripts to the Return of Writ
(Doc. 15), and they are a part of the record before the Court. However, Respondent concedes that
a copy of the transcripts was not served on Petitioner, taking the position that, in light of

2

Petitioner originally filed the action in the Northern District of Ohio. The action was subsequently transferred to
this Court. Order (Doc. 4).

10

Respondent’s “procedural defenses of time-bar, non-cognizability and procedural default,”
Respondent was not required to provide a separate copy of the transcripts to Petitioner in these
proceedings. Respondent’s Opposition to petitioner’s Motion to Stay (Doc. 16) and Motion for
Trial Transcripts (Doc. 17) (Doc. 20, PageID# 1444-47). Petitioner represents that he did not
previously obtain a copy of his transcripts from his former counsel, and he insists that he needs
to review the transcripts in order to substantiate his gateway claim of actual innocence and to
support the recanting affidavits of the alleged victim and witnesses. Motion for Production of
Trial Transcripts (Doc. 21, PageID# 1448).
“It is well established that a state court must provide an indigent defendant a copy of his
trial transcripts and court records so that the defendant may prosecute his direct appeal.” Kyle v.
Gansheimer, No. 5:11-cv-1395, 2011 WL 4566363, at *2 (N.D. Ohio Sept. 29, 2011) (denying
request for free transcript where the petitioner did not allege that his attorney did not previously
obtain a copy of the transcripts and he failed to show a “particularized need” for the transcripts
on collateral review) (citing Griffin v. Illinois, 351 U.S. 12 (1956)).

However, “[t]he

Constitution does not require that an indigent defendant be provided a free transcript for use in
attacking his conviction collaterally if a transcript was available on direct appeal.” Id. (citing
United States v. MacCollom, 426 U.S. 317, 325–326 (1976); see also Jones v. Tibbals, No. 5:13cv-1171, 2014 WL 1806784, at *9 (N.D. Ohio May 7, 2014) (“Legally, it is well established that
an appellant does not have an unqualified right to a transcript at the state’s expense in a collateral
matter.”) (citing MacCollom, 424 U.S. at 317; Rickard v. Burton, 2 Fed.Appx. 469, 470 (6th Cir.
2001)). In order to obtain a free copy of the transcript, a habeas petitioner must show that the
transcript is required in order to determine non-frivolous issues in his case. See also 28 U.S.C. §

11

753(f) (addressing the issue of free transcripts in collateral attacks under 28 U.S.C. § 2255 on
federal convictions). Petitioner has failed to make that showing.
Although Petitioner represents that he “has never received a copy of any transcripts from
former counsel,” Motion for Production of Trial Transcripts (Doc. 21, PageID# 1448), Petitioner
does not allege, and the record does not reflect, that his prior attorneys did not obtain a copy of
the transcripts, or that Petitioner is unable to obtain – or has even attempted to obtain - a copy of
those transcripts from his former counsel. Further, neither the state court’s Gardner hearing, nor
the transcript of Petitioner’s sentencing hearing will assist him in establishing his actual
innocence. Moreover, Petitioner has submitted the recanting affidavits in support of this claim.
See Motion to Amend Record/Petition Habeas Corpus (Doc. 8, PageID# 55-60). Finally, the
transcripts have been made a part of the record before this Court and are available for this
Court’s review.
Under all these circumstances, Petitioner’s requests for a free copy of the transcripts
(Docs. 17, 21) are DENIED.
Motion for Stay
Petitioner also asks that these proceedings be stayed so that he might pursue a delayed
application to reopen his appeal pursuant to Ohio Appellate Rule 26(B). Motion for Stay of
Proceedings (Doc. 16). According to Petitioner, the Indictment contained multiple
undifferentiated and duplicative charges and he seeks to raise in Rule 26(B) proceedings a claim
that his convictions therefore violate the Double Jeopardy Clause.

Presumably, Petitioner

intends to thereafter further amend the Petition to include that issue.
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349

12

(1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the
right under state law to raise a claim by any available procedure, he has not exhausted that claim.
28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526
U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
Furthermore, federal habeas courts may not entertain “mixed petitions,” i.e., petitions that
present both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). However,
federal courts have the discretion to stay a mixed petition in order to permit a petitioner to
present any unexhausted claim to the state courts, and then to return to federal court for review of
all, now exhausted, claims.

Rhines v. Weber, 544 U.S. 269 (2005).

Stays under these

circumstances should be only sparingly used; stays are not appropriate, for example, when the
unexhausted grounds are plainly meritless. Id. at 278. But where the statute of limitations may
bar a petitioner from re-filing his habeas corpus petition after exhausting state remedies, a federal
habeas court may stay proceedings where the petitioner demonstrates “good cause” for failing to
exhaust state remedies, his unexhausted claim is “potentially meritorious,” and “there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 277-78.
It is significant that none of the claims that are currently before this Court is unexhausted.
Some courts, including lower courts within the Sixth Circuit, have
declined to extend the Rhines stay-and-abeyance procedure to
petitions, such as this, containing only unexhausted claims. See,
e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006);
Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D. N.Y. 2004) (and
cases cited therein); Robinson v. Gidley, No. 2:15cv10572, 2015
WL 1120118, at *2 (E.D. Mich. Mar.11, 2015) (and numerous
cases cited therein); Taylor v. Kelly, No. 1:13cv2577, 2014 WL
4436595, at *1, *9 (N.D. Ohio Sept.9, 2014) (and numerous cases
cited therein); Secessions v. Warden, Lebanon Corr. Inst., No.
5:13cv195, 2014 WL 2919186, at *1, *5 (N.D. Ohio June 27,
2014); Gatlin v. Clipper, No. 5:13cv2434, 2014 WL 2743208, at
13

*2, *5 (N.D. Ohio June 17, 2014) (and cases cited therein); Warren
v. Warren, No. 2:13cv11234, 2013 WL 1875948, at *2 (E.D. Mich.
May 3, 2013); Sidibeh v. Buchanan, No. 2:12cv558, 2012 WL
6568231, at *8 (S.D. Ohio Dec.17, 2012) (King, M.J.) (Report &
Recommendation), adopted, 2013 WL 80362 (S.D. Ohio Jan.27,
2013) (Graham, J.); Mimms, supra, 2009 WL 890509, at *3. But cf.
Doe v. Jones, 762 F.3d 1174, 1176–81 (10th Cir. 2014) (holding
that the district court had “discretion to consider a Rhines stay even
though petitioner filed an unmixed petition” in a case where the
petitioner had “little chance of exhausting [his] claims in state
court and returning to federal court before the limitations period”
expired), cert. denied, —U.S. — , 135 S.Ct. 1424, 191 L.Ed.2d
386 (2015); Heleva v. Brooks, 581 F.3d 187, 191–92 (3d Cir.
2009) (holding that the district court erred in ruling that “Rhines
confines the availability of stay-and-abeyance solely to mixed
petitions” given that in Pace v. DiGuglielmo, 544 U.S. 408, 125
S.Ct. 1807, 161 L.Ed.2d 669 (2005), which was decided one month
after Rhines, the Supreme Court “sanctioned the use of stay-andabeyance in a context outside that of mixed petitions” in a case
involving the petitioner's “reasonable confusion about state filing
requirements”); Hyman v. Keller, No. 106652, 2011 WL 3489092,
at *10–11 (4th Cir. Aug. 10, 2011) (same); Dolis v. Chambers, 454
F.3d 721, 724–25 (7th Cir. 2006) (vacating the dismissal of a
habeas petition containing only unexhausted claims and remanding
with instructions to consider whether a stay was warranted in case
where any future habeas petition would be time-barred). Courts
that have held [that] a stay is inappropriate for petitions containing
only unexhausted claims have reasoned that (1) the district court
lacks jurisdiction over the petition while the petitioner pursues his
claims in state court in the absence of “exhausted claims that could
stay the petition;” and (2) “if district courts were to stay habeas
petitions that were completely unexhausted in order to maintain
their timeliness under the AEDPA, federal courts would be turned
into a jurisdictional parking lot for unexhausted claims.” Hust, 329
F. Supp. 2d at 380 (internal citation and quotation marks omitted);
Warren, supra, 2013 WL 1875948, at *2; see also United States v.
Hickman, 191 F. App'x 756, 757 (10th Cir. 2006) (denying
certificate of appealability in a case where a petition containing
only unexhausted claims was dismissed rather than stayed).
Peterson v. Warden, Pickaway Corr. Inst., No. 1:14-cv-604, 2015 WL 3970171, at *7 (S.D. Ohio
June 30, 2015) (declining to resolve the issue “because there appears to be a conflict among the
circuit courts and it does not appear that the Sixth Circuit has weighed in on the issue[.]”); see

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also Gaitlin v. Clipper, No. 5:13CV2434, 2014 WL 2743208, at *2 (N.D. Ohio June 17, 2014)
(holding that stay and abeyance procedure does not apply where the petitioner does not present a
mixed petition) (citing Witherspoon v. Howes, 1:07–CV–981, 2008 WL 3833751 *2 (W.D.
Mich. Aug. 13, 2008); Draheim v. Harry, No. 1:05–cv–587, 2005 WL 2758089 at *3 (W.D.
Mich. Oct.25, 2005)).
This Court need not resolve this issue because, in any event, the record does not reflect
that a stay is warranted. As discussed infra, the statute of limitations governing Petitioner’s
current and (presumably) proposed claims has already expired. Moreover, Petitioner has failed
to establish good cause for failing, to date, to pursue a delayed Rule 26(B) application. His
proposed unexhausted claim would have been readily apparent from the face of the record years
ago, and at the time of his trial. Petitioner has yet to pursue a delayed Rule 26(B) application. In
view of these facts, the state appellate court would most certainly deny a delayed Rule 26(B)
application at this time. This Court cannot, therefore, conclude that the proposed unexhausted
claim is potentially meritorious, as that term is contemplated in Rhines. See Childers v. Warden,
Chillicothe Correctional Institution, No. 2:13-cv-991, 2014 WL 3828429, at *4 (S.D. Ohio Aug.
4, 2014) (citing Toledo v. Banks, No. 09–cv–614, 2010 WL 2620593, at *5 (S.D.Ohio June 25,
2010) (citing Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010); Neville v. Dretke, 423 F.3d 474,
480 (5th Cir. 2005); Carter v. Friel, 415 F.Supp.2d 1314, 1321–22 (D.Utah 2006); Scott v.
Sheldon, 2009 2982866 (N.D.Ohio September 11, 2009); Sieng v. Wolfe, 2009 WL 1607769, *7,
Case No. 2:08–cv–0044 (S.D.Ohio June 9, 2009); Bailey v. Eberlin, 2009 WL 1585006, *7, Case
No. 2:08–cv–839 (S.D.Ohio June 4, 2009)). In short, a stay of proceedings to permit Petitioner
to pursue a motion that has little, if any, likelihood of success is simply unwarranted.
Petitioner’s Motion for Stay of Proceedings (Doc. 16) is therefore DENIED.

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In sum, Petitioner's Motion for Stay of Proceedings (Doc. 16) is DENIED and
Petitioner’s Motion(s) for Production of Trial Transcripts (Docs. 17, 21) are likewise DENIED.
Petitioner may have 21 days from the date of this Opinion and Order to file his traverse
to the Return of Writ (Doc. 14). See Order (Doc. 19).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 7, 2017

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