Powell v. Ross Correctional Facility

Filing 9

DECISION AND ORDER DENYING MOTION TO STAY 8 . Signed by Magistrate Judge Michael R. Merz on 2/14/2017. (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
WESTERN DIVISION AT DAYTON
CEDRIC E. POWELL,
Petitioner,

:

- vs -

Case No. 3:16-cv-109
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
:
Respondent.

DECISION AND ORDER DENYING MOTION TO STAY

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Motion to Stay pending exhaustion in the Ohio courts of his Motion to Vacate a Void Judgment
(State v. Powell, Case No. 99-CR-631) filed in that court January 31, 2017)(ECF No. 8).
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. However, in recognizing that authority, the Supreme Court:
[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"). . . .
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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.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005). “Staying a federal habeas petition frustrates
AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of
federal proceedings. Id.
As noted, Mr. Powell has already filed his Motion in the Montgomery County Common
Pleas Court. The remedy he seeks to invoke is not one usually seen in habeas corpus cases in
this Court, such as a direct appeal, a petition for post-conviction relief under Ohio Revised Code
§ 2953.21, or an application for reopening a direct appeal under Ohio R. App. P. 26(B). Thus the
Court cannot tell whether Mr. Powell has invoked a remedy the Ohio courts will recognize.
Moreover, because Mr. Powell has filed only the cover page of his state court motion, this Court
has no way to assess the possible merits of his motion. Finally, since the conviction is more than
sixteen years old, this Court has no way of assessing whether there has been undue delay in filing
the motion.
Accordingly, the Motion to Stay is DENIED without prejudice to its renewal if
accompanied by a full copy of the Motion filed in the Common Pleas Court along with a a
memorandum explaining his delay and what theory he relies on for obtaining relief.

February 14, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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