Christy v. Warden, Noble Correctional Institution

Filing 25

ORDER TO STAY PROCEEDINGS PENDING EXHAUSTION - It is hereby ORDERED that this action be stayed pending the outcome of Petitioner's intended motion for delayed appeal. Petitioner is ordered to file that Motion not later than September 15, 2024, and furnish this Court with a copy of the Motion. Not less than once a month thereafter, Petitioner shall file a report in this Court of the status of those proceedings. Signed by Magistrate Judge Michael R. Merz on 8/27/2024. (kpf)(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 AT COLUMBUS
KEVIN L. CHRISTY,
Petitioner,

:

- vs -

Case No. 2:22-cv-4220
District Judge James L. Graham
Magistrate Judge Michael R. Merz

WARDEN, Pickaway Correctional
Institution,
:
Respondent.

ORDER TO STAY PROCEEDINGS PENDING EXHAUSTION

This habeas corpus case, brought pro se by Petitioner Kevin Christy pursuant to 28 U.S.C.
§ 2254, is before the Court on the responses of both parties to Magistrate Judge Silvain’s Order to
Show Cause (ECF No. 13). The Magistrate Judge reference in this case has recently been
transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF
No. 24).
Judge Silvain suggested that Petitioner might have a remaining available state court remedy
in the form of a motion for delayed appeal in the Second District Court of Appeals (ECF No. 13,
PageID 693, citing Hall v. Huffman, 2000 WL 1562821, at *3 (6th Cir. Oct. 11, 2000), and State
v. Thornton, 1999 WL 1043942, at *1 (Ohio App. Nov. 19, 1999)).
Respondent opposes any stay to permit exhaustion, reasoning that Petitioner cannot show
good cause for his long delay in moving for a delayed appeal and seeking a stay in support (ECF
No. 19). Petitioner, however, has no opposition to a stay for the purpose of filing a second motion
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for delayed appeal (ECF No. 23).
District courts have authority to grant stays in habeas corpus cases to permit exhaustion of
state court remedies in consideration of the AEDPA’s preference for state court initial resolution
of claims. Rhines v. Weber, 544 U.S. 269 (2005). However, in recognizing that authority, the
Supreme Court 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
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. “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging
finality by allowing a petitioner to delay the resolution of federal proceedings.” Id. It also directed
district courts to place reasonable time limits on the petitioner’s trip to state court and back.
The Court finds that there is at least arguable good cause for Petitioner’s delay because the
practice of allowing a second motion for delayed appeal is sufficiently rare as to have produced a
split among the Ohio appellate courts. Finality is certainly an important goal both of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the
"AEDPA") and of habeas corpus practice generally. See Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). But in this case the State
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will not be deprived of the benefit of Petitioner’s conviction pending the stay.
Accordingly, it is hereby ORDERED that this action be stayed pending the outcome of
Petitioner’s intended motion for delayed appeal. Petitioner is ordered to file that Motion not later
than September 15, 2024, and furnish this Court with a copy of the Motion. Not less than once a
month thereafter, Petitioner shall file a report in this Court of the status of those proceedings.

August 27, 2024.
s/ Michael R. Merz
United States Magistrate Judge

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