Opinion
Case No. 1:02cv850.
April 18, 2005
REPORT AND RECOMMENDATION
Petitioner, an inmate in state custody at Chillicothe Correctional Institution in Chillicothe, Ohio, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, and petitioner's traverse. (Docs. 1, 6, 7).
Procedural Background
The July 2001 term of the Butler County, Ohio, grand jury indicted petitioner on two counts of trafficking in cocaine as defined in Ohio Revised Code § 2925.03(A)(1), one count of possession of cocaine as defined in Ohio Rev. Code § 2925.03(A)(2), and one count of permitting drug abuse as defined in Ohio Rev. Code § 2925.13(B). (Doc. 6, Ex. 9). On November 20, 2001, petitioner pled guilty to two counts of trafficking. ( Id., Ex. 13). The Court sentenced petitioner to four years for one count and eleven months for the other count. (Doc. 6, Exs. 14, 17). Petitioner did not file a direct appeal of his conviction. (Doc. 6 at 4).
On July 3, 2002, petitioner filed a motion for a speedy trial, arguing that the trial court lacked jurisdiction to convict him, apparently for the reason that a criminal complaint was not issued. ( Id., Ex. 18). As relief, petitioner moved to be tried promptly or for the dismissal of his case. ( Id.). There has been no ruling by the state trial court on this motion. (Doc. 6 at 5).
In the four grounds for relief in the petition, petitioner argues that essentially because a criminal complaint was not issued against him, the trial court had no jurisdiction to try him, the prosecutor had no authority to prosecute him, and petitioner was denied a speedy trial and is being unlawfully held. (Doc. 1).
Respondent argues that petitioner has failed to exhaust his state court remedies, or, alternatively, that his claims lack merit. (Doc. 6).
OPINION I. Petitioner has failed to exhaust his state court remedies.
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 first to present fairly those claims to the state courts for consideration because of the equal obligation of the state courts to protect constitutional rights of criminal defendants and the desire to prevent needless friction between 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). If a defendant fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. 28 U.S.C. § 2254(c). The United States Supreme Court in O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999), held that to fulfill the exhaustion 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 state's highest court, the Supreme Court of Ohio. See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
Although the exhaustion requirement is not jurisdictional, there is a strong presumption in favor of requiring exhaustion of state remedies. Granberry v. Greer, 481 U.S. 129, 131 (1987). An application for writ of habeas corpus, however, may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available. 28 U.S.C. § 2254(b)(2).
In this case, petitioner has not presented any of his grounds for relief to the Ohio appellate courts. Nonetheless, it appears that petitioner may still seek review of his claims for relief in the state courts by filing a motion for delayed appeal to the Ohio Court of Appeals pursuant to Ohio R. App. 5(A). See Ohio R. App. P. 5(A); see also Collins v. Perini, 448 F. Supp. 1006, 1008-09 (N.D. Ohio 1978) (and cases cited therein), aff'd, 594 F.2d 592 (6th Cir. 1979). If the Court of Appeals refuses to grant the motion for leave to file a delayed appeal, or otherwise renders a decision adverse to petitioner, he may further appeal to the Supreme Court of Ohio pursuant to Rules I and II of the Rules of Practice of the Supreme Court of Ohio.
Petitioner raises some of the issues in the instant federal petition in his motion for a speedy trial. However, these issues cannot be reviewed by the Ohio appellate courts absent a direct appeal of petitioner's conviction because a motion to dismiss on speedy trial grounds is not a final, appealable order. See, e.g., State v. Serednesky, No. 99 CA 77, 1999 WL 1124763, at *2 (Ohio Ct.App. Nov. 22, 1999); State v. Edwards, No. CA89-07-103, 1989 WL 106948, at *2 (Ohio Ct.App. Sept. 18, 1989) (and cases cited therein). Accordingly, even if the trial court had ruled on petitioner's motion, petitioner would have been required to take a direct appeal of his conviction to fulfill the exhaustion requirement.
Requiring petitioner to pursue a delayed appeal in the state courts prior to filing a federal habeas corpus petition would not be futile and will serve the interests of federal-state comity by giving the Ohio appellate courts the opportunity to address petitioner's claims on the merits. See Castille v. Peoples, 489 U.S. 346, 349 (1989).
II. This Case Should Be Stayed Pending Exhaustion of State Court Remedies.
When a habeas petition is dismissed on exhaustion grounds and petitioner returns to this Court to present his claims in a subsequent habeas corpus petition after he exhausts his state court remedies, his petition may be barred from review on statute of limitations grounds. See 28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the running of the one-year statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief or other collateral review. In Duncan v. Walker, 533 U.S. 167 (2001), the United States Supreme Court held that a federal habeas corpus petition is not an "application for State post-conviction or other collateral review" which tolls the limitations period under § 2244(d)(2). A concurring opinion by Justice Stevens, joined by Justice Souter, specifies that the equitable powers of the federal court may still be employed to toll the statute of limitations for "the class of petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not been exhausted." 533 U.S. at 184. The justice suggests that the district court either stay the proceedings until petitioner exhausts his state court remedies or deem the limitations period tolled for the first habeas corpus petition. Id. at 182-183.
These alternative approaches were noted with approval by the United States Court of Appeals for the Sixth Circuit in Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002). The court explained that Congress could not have desired "the preclusion of a timely filed petition for the writ due to the need to accord state courts the opportunity to adjudicate claims." 276 F.3d at 780. The Sixth Circuit discussed a Second Circuit case, Zarvela v. Artuz, 254 F.3d 374 (2nd Cir.), cert. denied, 534 U.S. 1015 (2001), which had adopted the stay alternative, imposing a brief, reasonable time limit upon the petitioner to exhaust his claims in the state courts and return to federal court to prevent undue delay. See id. The stay may be vacated if the time limits imposed were not satisfied. Id. (citing 254 F.3d at 381). The Second Circuit ruled that outright dismissal, as opposed to a stay, jeopardized the timeliness of petitioner's federal collateral review. Id. (citing 254 F.3d at 382). The First, Seventh, and Ninth Circuits also appear to favor the stay approach. Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir.), cert. denied, 538 U.S. 1042 (2003); Delaney v. Matesanz, 264 F.3d 7, 14 n. 5 (1st Cir. 2001); Freeman v. Page, 208 F.3d 572, 576 (7th Cir.), cert. denied, 531 U.S. 946 (2000). Calling the Second Circuit's approach "eminently reasonable," the Sixth Circuit noted that the stay procedure "addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners." 276 F.3d at 781.
Rose v. Lundy, 455 U.S. 509 (1982), required the dismissal of "mixed" federal habeas corpus petitions, i.e., petitions containing both exhausted and unexhausted claims, so that the federal court would not rule on unexhausted claims.
Since the enactment in April 1996 of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), the practice of this Court had been to dismiss habeas petitions for failure to exhaust state remedies without prejudice and equitably toll the running of the statute of limitations as of the date the habeas corpus petition was filed. The tolling of the limitations period was expressly conditioned on petitioner's pursuing his state court remedies within thirty days and on petitioner's refiling his renewed petition for habeas corpus relief within thirty days after exhausting his state court remedies.
Like the stay, this approach preserved the interests of comity without penalizing a petitioner who has failed to exhaust his state court remedies. Because the statute of limitations was tolled, petitioner would not be in danger of having his subsequent habeas petition dismissed as time-barred when he returns to pursue federal relief after exhausting his state remedies. The time restrictions placed on his pursuing his state remedies and returning to the federal courts ensured the prompt exhaustion of state court remedies and the prompt refiling of the federal action. Unlike the stay approach, dismissal of the petition with a tolling provision had the distinct advantage of removing petitioner's case from the federal district court's docket during the time petitioner is pursuing his state remedies, which could take months. This eliminated unnecessary administrative and judicial resources from being expended on a case that is essentially closed.
In Hargrove v. Brigano, 300 F.3d 717, 719-720 (6th Cir. 2002), the Sixth Circuit affirmed the district court's decision employing this tolling practice, concluding that it was "reasonable under the circumstances of th[e] case and under the conditions set forth by the district court." Citing Palmer v. Carlton, the Court, however, noted that the Sixth Circuit had "embraced" the stay approach set forth by the Second Circuit in the Zarvela case. In Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002), a death penalty case decided one day before Hargrove in which petitioner filed a "mixed" petition containing both exhausted and unexhausted claims, the Sixth Circuit instructed the district court to remand petitioner's unexhausted claim to the state court and stay petitioner's remaining claims pending resolution of the new, unexhausted issue. 300 F.3d at 683. In doing so, the Court indicated that it was adopting Zarvela's approach. Id. In Griffin v. Rogers, 308 F.3d 647 (6th Cir. 2002), the Sixth Circuit explicitly indicated its preference for the stay approach, specifying that "[o]f the two options that Justice Stevens suggested in his Duncan concurrence, it is preferable for district courts to stay proceedings pending exhaustion." 308 F.3d at 652 n. 1. The Court stated that "ordinarily a district court should stay such unexhausted claims pending exhaustion rather than dismiss them without prejudice." 308 F.3d at 652.
In light of these cases of the Sixth Circuit expressing a clear preference for a stay of cases, rather than an outright dismissal with an equitable tolling provision, the undersigned magistrate judge recommends that these proceedings be stayed. So that judicial and administrative resources are conserved, it is also recommended that the stay take the form of an administrative stay and that the case be terminated on the Court's active docket.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be administratively STAYED and TERMINATED on this Court's active docket pending petitioner's exhaustion of his Ohio remedies. The stay should be conditioned on petitioner's pursuing the state remedies discussed above within thirty (30) days of the date of filing of any Order adopting this Report and Recommendation and on petitioner's filing a motion to reinstate the case on this Court's active docket within thirty (30) days after exhausting his state remedies. Petitioner should be granted leave to move to reinstate the case on the Court's active docket when petitioner has exhausted his Ohio remedies and complied with both conditions of the stay.
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 to allow petitioner to exhaust his state 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 his state court remedies and, therefore, the case should be stayed pending exhaustion.
Because this Court finds the first prong of the Slack standard has not been met in this case, the Court need not address the second prong of Slack as to whether or not "jurists of reason" would find it debatable whether these claims constitute viable constitutional claims. See Slack, 529 U.S. at 484.
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, DENY petitioner leave to appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).