Fox v. Warden, Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LEWIS R. FOX,

CASE NO. 2:19-CV-00901

Petitioner, JUDGE JAMES L. GRAHAM

Magistrate Judge Kimberly A. Jolson

v.

WARDEN, BELMONT

CORRECTIONAL INSTITUTION,

Respondent.

ORDER

On August 30, 2019, the Magistrate Judge issued a Report and Recommendation

recommending that Respondent’s Motion to Dismiss be denied, that Petitioner’s unopposed

Motion to Deem Exhausted or Excused be granted, and that Respondent be directed to submit a

supplemental response to the petition. (Doc. 9). Respondent has filed an Objection to the

Magistrate Judge’s Report and Recommendation. (Doc. 10). Petitioner has filed a Motion to

Object to Respondent’s Objection and Motion to Supplement Petitioner’s Objection. (Docs. 11,

12, 14.)

At issue is whether Petitioner’s claim of the denial of the effective assistance of counsel

remains unexhausted, and whether the Court should therefore grant Respondent’s Motion to

Dismiss the case without prejudice as unexhausted or whether grounds exist to support an

alternative course of action. Petitioner first presented his claim of the denial of the effective

assistance of counsel to the state courts in a November 16, 2017, petition for post-conviction

relief. At the time of issuance of the Magistrate Judge’s Report and Recommendation, the trial

court had not yet issued a decision on that action. The Magistrate Judge therefore correctly

recommended denying Respondent’s Motion to Dismiss this action as unexhausted and granting

Petitioner’s Motion to Deem Exhausted or Excused based on the trial court’s inordinate delay.

The record now indicates, however, that on September 5, 2019, the trial court issued a Decision

and Entry denying Petitioner’s post-conviction petition as without merit and barred under the

doctrine of res judicata. (Doc. 10-1, PAGEID # 1062). Petitioner complained that he had not

received a copy of the trial court’s September 5, 2019, Decision and Entry, but nonetheless

indicated that he would withdraw his unexhausted claim and proceed on his remaining claims for

relief. (Objection, ECF No. 10.) Thereafter, on September 24, 2019, Respondent filed a Notice

of Repeat Service. (Doc. 13). Petitioner now indicates that he has received a copy of the trial

court’s September 5, 2019, Decision and Entry. (Motion to Supplement Petitioner’s Objection,

Doc. 14, PAGEID # 1088). Petitioner no longer wishes to delete his unexhausted claim of the

denial of the effective assistance of trial counsel. According to Petitioner, the State has

attempted to sabotage his ability to pursue relief and failed to provide him with timely

notification of the trial court’s Decision and Entry denying the petition for post-conviction relief.

As a result, Petitioner indicates that he could not pursue an appeal. Notably, Ohio does not

permit delayed appeals in post-conviction proceedings. See Brown v. Miller, No. 5:13-cv-2842,

2015 WL 4879100, at *4 (S.D. Ohio Aug. 14, 2015) (citing State v. Nichols, 11 Ohio St.3d 40,

42–43, 463 N.E.2d 375 (1984) (expressly holding that an Ohio App.R. 5(A) delayed appeal is

not available for an appeal of a post-conviction relief determination because post-conviction

proceedings are considered quasi-civil in nature); Ruark v. Warden, Ross Correctional Inst., No.

2:12–CV–934, 2014 WL 2805096, at *2 (S.D.Ohio June 20, 2014) (citing Nichols ).

The docket of the Franklin County Clerk indicates, however, that on October 4, 2019,

Petitioner filed a Notice of Appeal.

https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?gzwAxhdiS6DISg5g3Tuz

Thus, it appears that Petitioner’s state post-conviction appeal currently remains pending.

Further, it does not appear that the statute of limitations has yet to expire. Presumably, post-

conviction proceedings will toll the running of the statute of limitations under the provision of 28

U.S.C. § 2244(d)(2). See Agbor v. Warden, Ross Correctional Institution, No. 2016 WL 614575,

at *4 (S.D. Ohio Feb. 16, 2016) (citations omitted). Under these circumstances, the record does

not reflect a basis for a stay. Rhines v. Weber, 544 U.S. 269 (2005) (where the one-year statute

of limitations may bar a habeas petition from re-filing, a federal court may grant a stay if the

petitioner has “good cause” for failing to exhaust his claims and those claims do not plainly lack

merit). The record also no longer reflects grounds to excuse the exhaustion requirement based

on the state court’s inordinate delay in ruling. Therefore, unless Petitioner chooses to withdraw

his unexhausted claim of the denial of the effective assistance of trial counsel, the Court will

grant the Respondent’s Motion to Dismiss the case without prejudice as unexhausted.

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s

Motion to Deem Exhausted or Excused (Doc. 8) is DENIED. Petitioner’s Motion to Supplement

(Doc. 14) is GRANTED.

Petitioner shall notify the Court within ten (10) days as to whether he wishes to delete his

unexhausted claim of the denial of the effective assistance of counsel and proceed on his

remaining exhausted claims. His failure to do so will result in the dismissal of this action.

IT IS SO ORDERED.

Date: October 25, 2019 _______s/James L. Graham_________

JAMES L. GRAHAM

UNITED STATES DISTRICT JUDGE