Opinion
Case No. 1:07-cr-8.
August 27, 2009
ORDER
This case has been referred this date to the undersigned for consideration of Defendant's Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 38). Upon initial review of the case, the Court finds Defendant has not filed a reply to the Government's Answer (Doc. No. 34) in this case. It is accordingly ordered that Defendant file his reply not later than September 15, 2009.
Defendant has also filed a Motion for Stay and Abeyance (Doc. No. 32). In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court approved that process to allow habeas corpus petitioners under 28 U.S.C. § 2254 to exhaust state court remedies while preserving their federal filing for statute of limitations purposes. This Court perceives no reason why Rhines should not be applied in this case, since a one-year statute of limitations also applies to § 2255 motions and it is not tolled by the pendency of state proceedings attacking a conviction which was counted for sentencing purposes in the judgment under attack in federal court.
However, before applying Rhines, the Court must be assured that there is some purpose for the stay and that Defendant is diligently pursuing the state remedies. At the time he filed the Motion for Stay and Abeyance on September 7, 2008, Defendant represented to the Court there were several state felony convictions "for which Houston is in the proper state court forum seeking vacatur of." This Court ia aware that there are serious time and other procedural limits on state court remedies, at least in Ohio, which could vacate prior convictions. Therefore, along with his reply, Mr. Houston shall advise this Court in detail of what filings he has made in the state courts and what have been the results to date of those proceedings.