Opinion
CASE NO. 1:19-cv-00812
05-10-2019
CLARENCE BOGAN, III Petitioner, v. STATE OF OHIO, et al., Respondents.
JUDGE SOLOMON OLIVER, JR.
REPORT AND RECOMMENDATION
On April 12, 2019, Petitioner Clarence Bogan, III, represented by counsel, filed a petition for a writ of habeas corpus ("federal petition") pursuant to 28 U.S.C. § 2241 seeking to prevent his retrial in state court on double jeopardy grounds after a previous trial resulted in a mistrial. (R. 1). On the same date, Petitioner filed a Motion to Stay State Court Proceedings. (R. 2). On April 23, 2019, the Respondents filed a brief in opposition to the motion for a stay. (R. 6). Both the petition and the motion for stay were referred to this court for a report and recommendation. (R. 7).
The court finds Petitioner's motion requesting a stay is premature. First, the motion itself acknowledges that no trial date has been set. (R. 2, PageID# 111). In addition, on April 18, 2019, Petitioner's counsel filed a motion to stay proceedings with the Cuyahoga County Common Pleas court, where Petitioner's criminal case is pending, based on the aforementioned § 2241 petition. The state court has yet to rule on that motion. In addition, on May 1, 2019, the court ordered Respondent to file its Answer to the petition within 30 days. (R. 8). Therefore, the court recommends denying the Motion to Stay State Court Proceedings (R. 2) without prejudice as premature.
/s/_________
David A. Ruiz
United States Magistrate Judge Date: May 10, 2019
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after the party objecting has been served with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1) . Failure to file objections within the specified time may waive the right to appeal the district court's order. See United States v. Walters , 638 F.2d 947 (6th Cir. 1981) ; Thomas v. Arn , 474 U.S. 140 (1985), reh'g denied , 474 U.S. 1111 (1986) .