Johnson v. Warden Pickaway Correctional Institution

Filing 9

ORDER STAYING CASE PENDING EXHAUSTION - Petitioner's Motion for Stay Pending Exhaustion (Doc. No. 8) is GRANTED and the Report and Recommendations are WITHDRAWN. Petitioner is ordered to keep this Court currently advised of any decision by the S econd District Court of Appeals. This Court will conduct a new initial review of the Petition after the Second District (or the Supreme Court of Ohio if it accepts jurisdiction) has decided the case. Signed by Magistrate Judge Michael R Merz on 3/17/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
DERRICK L. JOHNSON,
Petitioner,

:

- vs -

Case No. 3:15-cv-090
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

JEFFREY LISATH, Warden,
Pickaway Correctional Institution,
:
Respondent.

ORDER STAYING CASE PENDING EXHAUSTION

This habeas corpus case is before the Court on Petitioner’s Motion for Stay Pending
Exhaustion (Doc. No. 8). The Motion shows Johnson has presented his Seventh Ground for
Relief to the Montgomery County Court of Common Pleas unsuccessfully, but the claim is
pending before the Second District Court of Appeals.
The Magistrate Judge has already filed a Report and Recommendations in the case,
recommending that it be dismissed as barred by the statute of limitations (Doc. No. 6). Staying
this case pending the outcome of state court proceedings does not prejudice the State of Ohio
which has not been ordered to answer the Petition and whose judgment against Petitioner is still
being executed. Granting a stay does not run counter to the policy of Rhines v. Weber, 544 U.S.
269, 277-278 (2005), because Petitioner has presented his claims to the state courts first.
In the absence of exceptional or unusual circumstances, principles of comity and
federalism require that unexhausted claims be decided in the first instance by the state courts
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even if the State does not raise the defense. O'Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996)(per
curiam)(en banc).
Accordingly, the Motion to Stay is GRANTED and the Report and Recommendations are
WITHDRAWN. Petitioner is ordered to keep this Court currently advised of any decision by the
Second District Court of Appeals. This Court will conduct a new initial review of the Petition
after the Second District (or the Supreme Court of Ohio if it accepts jurisdiction) has decided the
case.
The Clerk shall furnish a copy of this Order to Petitioner’s state court counsel, Charles
Slicer III.
The Court notes that Petitioner mailed his Motion to Stay to the Joseph P. Kinneary
Courthouse in Columbus. Future filings must be mailed to the Clerk at Room 702, 200 West
Second Street, Dayton, Ohio 45402.

March 17, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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