STEPHANIE K. BOWMAN, Magistrate Judge.
Petitioner, a prisoner at the Lebanon Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's motion for stay and abeyance (Doc. 8), motion to strike motion for stay and abeyance (Doc. 11), and motion for leave to file an amendment to his petition (Doc. 12). For the reasons stated below, petitioner's motion to amend is granted, his motion to strike is denied, and the undersigned recommends that petitioner's motion to stay be granted.
In the petition, petitioner challenges his Hamilton County, Ohio convictions for aggravated burglary, rape, felonious assault, and tampering with evidence. Petitioner raises the following four grounds for relief in the petition:
(Doc. 1). On December 18, 2018, respondent filed a return of writ in opposition to the petition. (Doc. 6). According to respondent, petitioner's grounds for relief are procedurally defaulted, non-cognizable, and without merit.
On January 8, 2019, petitioner filed a motion to stay this action while he pursues a petition for post-conviction relief in the trial court. (Doc. 8). In the post-conviction petition, which remains pending in the Ohio trial court, petitioner raises two claims of ineffective assistance of trial counsel. First, petitioner claims that his trial counsel was ineffective for failing to investigate and present letters from Raymond Lear—a fellow prisoner and the boyfriend of the victim in petitioner's case—which he claims are exculpatory.
Respondent has filed a response in opposition to petitioner's motion. Respondent argues that staying this action is not appropriate because petitioner has not raised the claims asserted in his post-conviction petition as grounds for relief in this action. Respondent further contends that petitioner failed to demonstrate that the claims are potentially meritorious. (Doc. 10).
Apparently in response to respondent's opposition, petitioner subsequently filed a motion to strike his motion to stay (Doc. 11) and a motion for leave to file an amendment to his habeas petition. (Doc. 12). Petitioner notes in his motion to strike that he filed the stay motion prematurely, before he had the opportunity to file a motion to amend the petition. Petitioner indicates that he intends to refile the motion to stay after the Court has ruled on his motion to amend.
In the motion to amend, petitioner seeks to add the following two grounds for relief to his petition:
(Doc. 12 at PageID 1374). Respondent has not filed an opposition to petitioner's motion to amend.
Fed. R. Civ. P. 15, which governs pleading amendments in civil cases, is applicable to federal habeas corpus proceedings. Mayle v. Felix, 545 U.S. 644, 655 (2005). The factors that the Court should consider in determining whether to grant leave to amend include "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)).
After considering the above factors and for good cause shown, petitioner's motion to amend the petition to include the above fifth and sixth ground for relief is
With respect to petitioner's motion for stay and abeyance, the undersigned finds that petitioner should be afforded the opportunity to exhaust the claims raised in his pending post-conviction petition in the state courts. An application for a writ of habeas corpus by a state prisoner shall not be granted unless the petitioner has exhausted his state court remedies, there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect petitioner's rights. 28 U.S.C. § 2254(b)(1). A state defendant with federal constitutional claims is required to first fairly present those claims to the state courts for consideration because of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). Under the "fair presentation" requirement, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," which, in Ohio, includes discretionary review in the Ohio Supreme Court. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985).
If the petitioner fails to fairly present his claims through the requisite levels of state appellate review, but still has an avenue open to him in the state courts by which he may present the claims, his petition is subject to dismissal without prejudice for failure to exhaust state remedies. See 28 U.S.C. § 2254(c). Although the exhaustion requirement is not jurisdictional, and an application for a writ of habeas corpus may be denied on the merits notwithstanding the petitioner's failure to exhaust state remedies, see 28 U.S.C. § 2254(b)(2), there is a strong presumption in favor of requiring exhaustion of state remedies. See Granberry v. Greer, 481 U.S. 129, 131 (1987). A "mixed" petition containing both unexhausted claims and claims that have been fairly presented to the state courts is subject to dismissal without prejudice on exhaustion grounds. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
Since the enactment in 1996 of the Antiterrorism and Effective Death Penalty Act (AEDPA), which "preserved Lundy's total exhaustion requirement," but also imposed a one-year statute of limitations on the filing of federal habeas petitions, Rhines v. Weber, 544 U.S. 269, 275 (2005), some federal courts (including the Sixth Circuit) have adopted a "stay-and-abeyance" procedure to ensure habeas review is not precluded in the class of cases where a timely-filed federal habeas petition is dismissed on exhaustion grounds and petitioner subsequently returns to federal court to present his claims in a renewed petition after exhausting his state remedies only to find that his claims are barred from review by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). See, e.g., Griffin v. Rogers, 308 F.3d 647, 652 & n.1 (6th Cir. 2002); Palmer v. Carlton, 276 F.3d 777, 778-81 (6th Cir. 2002).
In Rhines, 544 U.S. at 276, the Supreme Court affirmed that district courts have the discretion to issue stays in habeas cases, but that such discretion is circumscribed to the extent it must "be compatible with AEDPA's purposes." The Court pointed out that one of the AEDPA's purposes is to "reduce delays in the execution of state and federal criminal sentences" based on the "well-recognized interest in the finality of state judgments." Id. (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003), and Duncan v. Walker, 533 U.S. 167, 179 (2001)). In addition, the AEDPA's statute of limitations tolling provision was intended to "reinforce[] the importance of Lundy's "simple and clear instruction to potential litigants: before you bring any claims in federal court, be sure that you first have taken each one to state court." Id. at 276-77 (quoting Lundy, 455 U.S. at 520).
The Court went on to determine that:
Id. at 277.
The Court held that 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," and that, "even if a petitioner had good cause for that failure," it would be an abuse of discretion for the court to grant a stay where the unexhausted claims "are plainly meritless" or the "petitioner engages in abusive litigation tactics or intentional delay." Id. at 277-78. However, 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 278.
In the absence of clear guidance from the Supreme Court, the federal courts have differed as to what constitutes "good cause" within the meaning of Rhines. See, e.g., Williams v. Hurley, No. 2:05-cv-985, 2006 WL 1650771, at *10-11 (S.D. Ohio June 6, 2006) (Report & Recommendation) (King, M.J.) (discussing the split in authority as to whether "cause standard of Rhines requires a lesser showing than that for procedural default" and whether ineffective assistance of counsel during state post-conviction proceedings may constitute "good cause for failure to exhaust claims in state proceedings"), adopted, 2006 WL 1804550 (S.D. Ohio June 28, 2006) (Holschuh, J.) (unpublished); see also Tolliver v. Sheets, No. 2:05-cv-1161, 2007 WL 2462650, at *17-18 (S.D. Ohio Aug. 27, 2007) (Smith, J.; King, M.J.) (unpublished).
In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court stated that a "petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file" a petition containing unexhausted claims in the federal court. Some courts have concluded that this statement in Pace supports a more expansive definition of good cause. See, e.g., Tullis v. Kontah, No. 2:06cv1025, 2007 WL 915197, at *5-6 (S.D. Ohio Mar. 26, 2007) (Graham, J.; King, M.J.) (unpublished) (citing Ninth Circuit decision in Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005), and Baker v. Horn, 383 F.Supp.2d 720, 747 (E.D. Pa. 2005)); see also Hnatiuk v. Trombley, No. 06-13880, 2008 WL 3305157, at *4 (E.D. Mich. Aug. 11, 2008) (unpublished) (quoting Rhines v. Weber, 408 F.Supp.2d 844, 849 (D.S.D. 2005) (on remand from Supreme Court's decision in Rhines)). In Tullis, after detailing the "broad and varied" split in authority, the Court concluded with the following quotation from Riner v. Crawford, 415 F.Supp.2d 1207, 1209-11 (D. Nev. 2006):
Tullis, supra, 2007 WL 915197, at *6.
In this case, the undersigned recommends that the petition be stayed so that petitioner may attempt to exhaust the ineffective assistance of counsel claims raised in Ground Five and Six and in his pending post-conviction petition in the state courts. At this point in the proceedings, the Court cannot conclude that petitioner's unexhausted claims are "plainly meritless" or that petitioner has engaged in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at 277-78. Furthermore, if the Court were to dismiss the petition without prejudice instead of staying the case, any subsequent petition filed by petitioner raising the claims alleged here may be subject to dismissal on statute of limitations grounds.
Accordingly, in sum, after weighing the Rhines factors, for good cause shown, and out of concern that the dismissal of the petition at this juncture might unreasonably impair future federal review of any of petitioner's grounds for habeas corpus relief, it is
Petitioner's motion for leave to file and amendment to his habeas petition (Doc. 12) is
1. Petitioner's motion for stay and abeyance be
2. A certificate of appealability should not issue under the standard set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), which is applicable to this case involving a recommended stay of the petition so that petitioner can exhaust available state court remedies. Cf. Porter v. White, No. 01-CV-72798-DT, 2001 WL 902612, at *3 (E.D. Mich. Aug. 6, 2001) (unpublished) (citing Henry v. Dep't of Corrections, 197 F.3d 1361 (11th Cir. 1999) (pre-Slack case)) (certificate of appealability denied when case dismissed on exhaustion grounds). See generally Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998); Christy v. Horn, 115 F.3d 201, 203-206 (3rd Cir. 1997) (order staying habeas petition to allow exhaustion of state remedies is appealable collateral order). "Jurists of reason" would not find it debatable whether this Court is correct in its procedural ruling that petitioner has failed to exhaust state court remedies and that the case should be stayed (as opposed to dismissed without prejudice) pending exhaustion of such remedies.
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
Pursuant to Fed. R. Civ. P. 72(b),
