Brown v. Warden, London Correctional Institute

Filing 2

ORDER TO FILE PETITION - Before this Court can grant a stay under Rhines, it must actually have a pending petition. Accordingly, Petitioner Brown is ordered to file his petition immediately. Signed by Magistrate Judge Michael R. Merz on 3/20/2020. (kma)(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
LARRY E. BROWN, II,
Petitioner,

:

- vs -

Case No. 3:20-cv-113
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
London Correctional Institution,
:
Respondent.

ORDER TO FILE PETITION

This case is before the Court on Petitioner’s Motion to Stay habeas corpus proceedings
pending exhaustion of his state court remedies (ECF No. 1). In the Motion he represents that he
is simultaneously filing a petition for writ of habeas corpus, but he has not actually done so.
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 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"). . . .
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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.
Before this Court can grant a stay under Rhines, it must actually have a pending petition.
Accordingly, Petitioner Brown is ordered to file his petition immediately.

March 20, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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