Nian v. Warden, North Central Corectional Complex

Filing 25

DECISION AND ORDER - The Motion to Dissolve 22 is denied as premature without prejudice to its renewal when the state appellate process is completed. Petitioner shall amend his Petition to add constitutional claims not later than March 1, 2022. At the same time, he should formally move for a stay under Rhines. Signed by Magistrate Judge Michael R. Merz on 1/19/2022. (kpf)

Case: 2:17-cv-00313-JLG-MRM Doc #: 25 Filed: 01/19/22 Page: 1 of 3 PAGEID #: 1109

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ABULAY NIAN,
Petitioner,

:

- vs -

Case No. 2:17-cv-313
District Judge James L. Graham
Magistrate Judge Michael R. Merz

WARDEN, North Central
Correctional Complex,
:
Respondent.

DECISION AND ORDER

This habeas corpus case is before the Court on Motion of the Respondent to Dissolve the
Conditional Writ of habeas corpus this Court issued pursuant to the mandate of the United States
Court of Appeals for the Sixth Circuit (ECF No. 22). See Nian v. Warden, N. Cent. Corr. Inst.,
994 F.3d 746 (6th Cir. 2021). Respondent reports that the Common Pleas Court of Delaware
County, Ohio, has conducted a hearing on Petitioner’s motion for new trial and entered judgment
denying that motion. Because those actions prima facie satisfy the conditions ordered by the Sixth
Circuit and imposed by this Court, Respondent seeks to have the writ dissolved.
Petitioner opposes the Motion and seeks a stay of these proceedings pending his appeal
from the denial of his Motion for New Trial (ECF No. 24). Respondent has not filed a reply in
support and the time for doing so under S. D. Ohio Civ. R. 7.2 has expired.
The Court agrees with Petitioner that Respondent’s Motion is premature. The Sixth
Circuit’s remand directed that the Delaware County Court of Common Pleas conduct an
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evidentiary hearing on Petitioner’s Motion for New Trial, a so-called Remmer hearing1. In
compliance with the mandate, this Court issued the Conditional Writ (ECF No. 20). Respondent’s
Motion shows at least prima facie compliance with the Conditional Writ: hearing held, witnesses
heard, testimony evaluated at some length, decision entered. But Petitioner has objections to that
decision which he intended to appeal not later than January 12, 2022; he does not disclose the
content of those objections.
From the Magistrate Judge’s experience, the Ohio courts treat trial court decisions denying
motions for new trial as final appealable orders. Thus this Court expects the Delaware County
Court of Appeals to take jurisdiction of Petitioner’s appeal. This is part of the ordinary Ohio
process with motions for new trial and thus at least colorably within the contemplation of the Sixth
Circuit when it remanded the case. Accordingly the Motion to Dissolve is denied as premature
without prejudice to its renewal when the state appellate process is completed.
Petitioner also seeks a stay of these proceedings under Rhines v. Weber, 544 U.S. 269
(2005). In recognizing in that case the authority of District Court to stay proceedings, the Supreme
Court also held:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines
there was good cause for the petitioner's failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for
that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
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Remmer v. United States, 347 U.S. 227 (1954).

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petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Id. at 277-278.
The Sixth Circuit explicitly recognized that “[Nian] is free to seek habeas relief if he finds
the State's process constitutionally inadequate.” 994 F. 3d at 759. At this point the Court does not
know whether or in what ways Nian may believe the process he has now received from the
Delaware County Court of Common Pleas is “constitutionally inadequate”; he may be appealing
on the basis of state law issues. If Nian has constitutional claims about that process, he must move
to amend his Petition to add those claims; any such motion shall be made not later than March 1,
2022. At the same time, he should formally move for a stay under Rhines.
Those claims should be raised in this case because pleading them in a new habeas petition
could arguably require circuit court permission to proceed under 28 U.S.C. § 2244(b). Such a
petition would arguably not be “second or successive” because it would be attacking a new
judgment of the state courts, i.e., the judgment denying a new trial. The opposing argument would
be that it is second or successive because it would still be attacking the original judgment of
conviction. It is very likely that even if the circuit court found it second or successive, it would
grant permission, but there is no need to run that procedural gauntlet.

January 19, 2022.
s/ Michael R. Merz
United States Magistrate Judge

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