# Froman v. Shoop

> District Court, S.D. Ohio · August 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10665087

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TERRY LEE FROMAN,

Petitioner,

v. Case No. 2:23-cv-444
JUDGE MICHAEL R. BARRETT
TIM SHOOP, Warden, Chief Magistrate Judge Karen L. Litkovitz
Chillicothe Correctional Institution,

Respondent.

DECISION AND ORDER ON MOTION TO HOLD PETITION IN ABEYANCE AND
EXPAND SCOPE OF REPRESENTATION

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus petition pursuant to 28 U.S.C. § 2254. This matter is before the Court on
Petitioner’s motion to stay these federal habeas proceedings and hold them in abeyance and
authorize habeas counsel to appear in state court (Doc. 26), Respondent’s memorandum in
opposition (Doc. 29), and Petitioner’s reply (Doc. 32). For the reasons that follow, both requests
are well taken and the Court GRANTS Petitioner’s motion.
I. OVERVIEW
After a jury trial in Warren County, Ohio, Petitioner Terry Lee Froman was convicted
and sentenced to death for the August 2014 kidnapping and aggravated murder of Kimberly
Thomas. See State v. Froman, 162 Ohio St. 3d 435 (2020). His state direct appeal and post-
conviction petition were unsuccessful. See id.; State v. Froman, Case No. CA2020-12-080, 2022
WL 3149580 (Ohio App. 12th Dist. Aug. 8, 2022).
On February 6, 2023, this Court granted Petitioner’s request to proceed in forma pauperis
and appointed counsel from the Capital Habeas Unit of the Federal Public Defender’s Office for
the Southern District of Ohio to represent him in these habeas proceedings. (Doc. 6.) On
December 19, 2023, Petitioner filed his Petition for a Writ of Habeas Corpus. (Doc. 25.) On
that same date, Petitioner also filed the instant motion to stay and hold the proceedings in

abeyance and to authorize federal habeas counsel to represent him in anticipated state court
proceedings so that he may exhaust newly discovered claims for relief. (Doc. 26.)
In the motion to stay, Petitioner argues that during the course of habeas counsels’
investigation of his case over the past year, counsel uncovered new and additional constitutional
claims that have not been presented to the state courts and are therefore unexhausted.
Specifically, Petitioner argues he uncovered evidence indicating that “Warren County, where
Froman’s trial took place, is systemically excluding African Americans from its jury pool; that
jurors from Froman’s trial engaged in a host of misconduct; and that Mr. Froman suffers from a
serious mental illness, bipolar I disorder.” (Doc. 26, at PAGEID # 11226.) Petitioner also
claims that his trial counsel violated his Sixth Amendment rights pursuant to McCoy v.

Louisiana, 584 U.S. 414 (2018), by making concessions of guilt without first obtaining his
consent. (Id. at PAGEID # 11229.) Petitioner included these seven newly discovered and
unexhausted claims in his federal habeas petition, wherein he sets forth a total of eighteen claims
for relief. (Doc. 25.) Petitioner identifies the unexhausted claims as claims two through seven
and fifteen. (Doc. 26, at PAGEID # 11228-11229.)
Respondent opposes Petitioner’s motion, setting forth two arguments for why stay and
abeyance is not warranted or appropriate in this case. (Doc. 29.) First, Respondent argues that
the new claims Petitioner asserts are unexhausted are actually procedurally defaulted, because

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Petitioner has no remaining and available state court remedies through which he can pursue the
claims. (Id. at PAGEID # 11297.) Second, Respondent argues the new claims regarding
Petitioner’s alleged serious mental illness are non-cognizable in federal habeas corpus.
Specifically, Respondent argues that “[d]espite his efforts to federalize the allegations, the

grounds rest upon Ohio’s recently enacted Serious Mental Illness statute and the United States
Supreme Court has never recognized a similar bar on executing the mentally ill.” (Id.)
II. LEGAL STANDARDS
State prisoners seeking habeas corpus relief must first exhaust all remedies available in
the state courts. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). Exhaustion
of state-court remedies requires a state defendant with federal constitutional claims to first fairly
present those claims to the state courts, 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, 404 U.S. at 275-76. Under the “fair presentation” requirement, each claim must

be presented to the state courts in a manner that affords the state courts the opportunity to
remedy the alleged constitutional violation, which obliges a petitioner to present the same factual
and legal basis for each claim to the state courts that the petitioner seeks to present to the federal
habeas court. Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006). A claim is not exhausted if there remain available state-court remedies.
28 U.S.C. § 2254(b), (c). That is, if a 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 claims are unexhausted.

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Federal district courts may not ordinarily adjudicate a “mixed” habeas petition that
presents both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
But district courts have the discretion to stay habeas corpus proceedings and hold them in
abeyance to allow a petitioner with a mixed petition to return to state court to exhaust the

unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275-76 (2005). A Rhines stay-and-
abeyance is warranted only when the unexhausted claims are not plainly meritless and the
petitioner has shown good cause for the failure to exhaust the claims earlier. Id. at 277. Further,
stay-and-abeyance is only available in limited circumstances and must be conditioned on time
limits so as not to undermine Congress’s intent to streamline habeas proceedings and encourage
the finality of state court judgments. Id. at 276-78. See also McBride v. Skipper, 76 F.4th 509,
513 (6th Cir. 2023) (discussing the Rhines considerations). Stay-and-abeyance is thus
inappropriate if a petitioner engages in abusive litigation tactics or intentional delay. 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.” Rhines, 544 U.S. at 278.
III. DISCUSSION
A. Stay-and-Abeyance
Petitioner asks the Court to stay these proceedings and hold them in abeyance while he
litigates new claims, discovered for the first time during habeas proceedings, in the state courts.
Specifically, Petitioner intends to file in the state trial court a motion for leave to file a delayed

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motion for a new trial pursuant to Ohio R. Crim. P. 33(B), and/or a successive postconviction
action pursuant to Ohio Rev. Code § 2953.23. (Doc. 32, at PAGEID # 11317.)
The Court will begin its analysis with Petitioner’s second claim for relief, wherein he sets
forth a new and unexhausted claim of jury misconduct. Petitioner argues his rights under the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated
and his death sentence is constitutionally invalid, because of jury misconduct during his trial.
According to Petitioner, the jury misconduct included the “failure to follow the trial court’s
instructions; rushing to judgment and deciding on a death sentence during the trial phase; refusal
to give full, meaningful consideration and effect to Froman’s mitigating evidence; refusal to
consider any mitigation evidence; juror bias, including refusal by more than one automatic-
death-penalty jurors to consider any sentence other than death after the trial phase; consideration
of extrinsic evidence; consideration of an invalid aggravator to impose death; consideration of
Froman’s silence or lack of sworn testimony to find him guilty and/or sentence him to death; and
consideration of unadmitted evidence received outside the presence of counsel during the

sentencing phase of trial.” (Doc. 25, at PAGEID # 10606.)
As an initial matter, the Court declines to consider anticipatory default as argued by
Respondent. Respondent asserts Petitioner’s claims should be deemed exhausted but
procedurally defaulted because “the state court is unlikely to permit Froman to file a successive
postconviction relief petition or grant a motion for a new trial.” (Doc. 29, at PAGEID # 11299.)
But as Petitioner points out, Ohio law permits a petitioner to file a motion for a new trial based
on allegations such as juror misconduct. And if a petitioner is outside of the time limitations set
forth in Ohio Crim. R. 33(B), he may move for leave to file a delayed motion for a new trial if he

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establishes that he was unavoidably prevented from filing his motion for a new trial within the
applicable time limit. Petitioner notes that generally “[p]arties are unavoidably prevented from
filing a motion for new trial if ‘the party had no knowledge of the existence of the ground
supporting the motion for new trial and could not have learned of the existence of that ground

within the time prescribed for filing the motion for new trial in the exercise of reasonable
diligence.” (Doc. 26, at PAGEID # 11241) (citing State v. McKnight, 2021-Ohio-2673, 176
N.E.3d 802 (Ohio App. 4th Dist. 2021)).
This Court agrees that “the determination of whether a habeas petitioner satisfies a state
procedural requirement is for the state court to make.” Cunningham v. Hudson, 756 F.3d 477,
483 (6th Cir. 2014) (citation omitted). In Cunningham, the Sixth Circuit held that a belatedly
discovered juror bias/misconduct claim was not exhausted when the petitioner could “still raise
[the] claim in a motion for a new trial or a second petition for post-conviction relief in the Ohio
state courts.” Cunningham, 756 F.3d at 479. In so finding, the Sixth Circuit noted its “inability
to predict how the Ohio state courts would rule” on either avenue for relief. Id. at 483.

Similarly, this Court declines to speculate whether the Ohio courts will permit Petitioner to raise
his newly discovered claims, and therefore concludes that the state remedy of a motion for a new
trial or the remedy of a second post-conviction petition may still be available to Petitioner.
The Court must consider whether good cause exists for Petitioner’s failure to exhaust his
claims and whether his unexhausted claims are plainly meritless. Petitioner argues that good
cause exists for his failure to raise his juror misconduct allegations in the state courts because the
misconduct was only recently discovered by federal habeas counsel. According to Petitioner, he
was represented by attorneys from the Death Penalty Division of the Ohio Public Defender’s

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Office during his state post-conviction proceedings. Post-conviction counsel made attempts to
interview each of the jurors during their investigation but those attempts were unsuccessful. In
support of his habeas petition, Petitioner has attached the Affidavit of his lead post-conviction
counsel, Attorney Jessica Houston. Attorney Houston avers that she and others attempted to

contact each of the jurors, but the jurors either refused to speak to them, provided limited
information, or did not return their calls. (Doc. 25-25, at PAGEID # 11195, ¶¶ 7-9, Aff. of
Attorney Houston; Doc. 25-27, at PAGEID # 11209, ¶¶ 3-5, Aff. of Attorney LaHote).
Petitioner also notes that post-conviction counsel sought to conduct discovery and requested an
evidentiary hearing on several claims related to the jury, but the State objected to those requests
and the trial court denied the same. (Doc. 26, at PAGEID # 11232-11233; Doc. 25-25, at
PAGEID # 11195, ¶ 8, Aff. of Attorney Houston.)
By contrast, federal habeas counsel and investigators working on behalf of habeas
counsel have interviewed several jurors. Petitioner notes:
This Court appointed undersigned habeas counsel on February 6, 2023.
(Doc. 6, at PAGEID # 37.) Current counsel then undertook a diligent
investigation, and jurors were at least preliminarily willing to talk to them. The
information informally gleaned from some jurors gave rise to the issues in Claim
2. Thus, good cause exists because the prior attorneys acted diligently, but they
were stymied in their efforts by the jurors themselves, the prosecution, and the
state court, and Froman and his counsel could not have discovered the facts that
gave rise to the allegations in Claim 2 any sooner. Moreover, even if Froman’s
post-conviction counsel are somehow deemed at fault for failing to exhaust the
juror misconduct claims, that ineffective assistance from post-conviction counsel
will suffice to establish good cause for a Rhines stay under Martinez v. Ryan, 566
U.S. 1, 17 (2012); Trevino v. Thaler, 569 U.S. 413, 423 (2013). See, e.g.,
Guevara-Pontifes v. Baker, No. 3:20-cv-652, 2022 U.S. Dist. LEXIS 172468, 7-8
(Sept. 23, 2022) (cited approvingly in Sapp v. Jenkins, No. 2:17-cv-1069, 2023
U.S. Dist. LEXIS 86089, *13 (S.D. Ohio May 16, 2023)).

(Doc. 26, at PAGEID # 11233.)
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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 the good 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 729,
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). 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):
[T]he discussions by the Pennsylvania court in Baker and the Ninth Circuit in
Jackson support . . . [the] conclusion that the good cause standard applicable in
consideration of a request for stay and abeyance of a federal habeas petition
requires the petitioner to show that he was prevented from raising the claim, either
8
by his own ignorance or confusion about the law or the status of his case, or by
circumstances over which he had little or no control, such as the actions of
counsel either in contravention of the petitioner’s clearly expressed desire to raise
the claim or when petitioner had no knowledge of the claim’s existence.

Tullis, supra, 2007 WL 915197, at *6.
For the reasons outlined by Petitioner, and out of an abundance of caution, the Court
finds good cause exists for Petitioner’s failure to raise his jury misconduct claim sooner.
Petitioner has asserted that he was unable to uncover the alleged misconduct previously because
the jurors refused to cooperate with his prior counsel despite attempts to contact and speak with
them. Post-conviction counsel aver that they made diligent attempts to interview the jurors
during their investigation but the jurors were not willing to cooperate until many years later
when federal habeas counsel made a renewed attempt. Moreover, it appears that post-conviction
counsel filed – and the state courts denied – requests for discovery and an evidentiary hearing
aimed at further investigating juror issues.
Next, the Court must consider whether Petitioner’s jury misconduct claim is “potentially
meritorious” or is not “plainly meritless.” Rhines, 544 U.S. at 270, 277. Although the United
States Supreme Court did not define those terms in the Rhines decision, “district courts in this
circuit have refrained from weighing the evidence of a particular claim and instead, only conduct
an ‘initial review’ of a petitioner’s claims.” Dellinger v. Mays, No. 3:09-CV-104-TAV-DCP,
2022 WL 4360845, at *9 (E.D. Tenn. Sept. 20, 2022) (citing Wengorovius v. Scutt, No. 09-CV-
13228, 2009 WL 2849577, at *3 (E.D. Mich. Sept. 1, 2009)). That is, the Court “must only
conduct ‘a facial examination of the unexhausted claim’ in order to determine ‘whether the
proposed new claim is so facially meritless that presenting it to the state courts will be a waste of
time.’” Brown v. Rogers, Case No. 1:99cv549, 2017 WL 1134374, at *8 (S.D. Ohio Mar. 27,
9
2017) (Marbley, Chief Judge) (quoting Bailey v. Lafler, Case No. 1:09-cv-460, 2010 WL
4286352, *5 (W.D. Mich. Sept. 29, 2010)). See also Misch v. Chambers-Smith, 656 F. Supp. 3d
761, 764 (N.D. Ohio 2023) (finding unexhausted claims to be potentially meritorious where the
petition on its face sets forth allegations that could lead to habeas relief); Strickland v. Berghuis,

Case No. 13-cv-10350, 2013 WL 2482895, at *2 (E.D. Mich. June 10, 2013) (“Most courts
applying the standard do so in a conclusory fashion without weighing or even considering the
evidence.”); Johnson v. Scutt, Case No. 11-cv-11782, 2011 WL 1792700, at *2 (E.D. Mich. May
11, 2011) (unpublished) (finding claims not “plainly meritless” for purposes of stay and
abeyance analysis where the claims were “federal claims and [were] cognizable on federal
habeas review”) (citing Wagner v. Smith, 581 F.3d 410, 419 n. 4 & 5 (6th Cir. 2009)).
With that standard in mind, the Court is unable to conclude at this early stage of the
proceedings that Petitioner’s jury misconduct claim is – on its face – patently meritless.
Petitioner’s jury misconduct claim, set forth as his second claim for relief, spans approximately
eighty-three pages of the Petition and sets forth allegations of misconduct regarding at least five

jurors. (Doc. 25, at PAGEID # 10606-10689.) The allegations of juror misconduct, if true,
might establish a violation of Petitioner’s constitutional rights and might support the granting of
a writ of habeas corpus. As such, this factor weighs in Petitioner’s favor.
The Court also notes that in the context of a Rhines motion to stay habeas proceedings to
permit exhaustion of state court remedies, the Court need not determine whether every
unexhausted claim Petitioner seeks to exhaust is plainly meritless, “as long as at least one claim
has potential merit.” Brown v. Rogers, Case No. 1:99cv549, 2017 WL 1134374, at *8 (S.D.

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Ohio Mar. 27, 2017) (Marbley, Chief Judge) (quoting Zebroski v. Phelps, Case No. 03-853-LPS,
2013 WL 1969248, *3 (D. Del. May 13, 2013)). This means:
Rhines does not state or suggest that every unexhausted claim in the petition must
satisfy, individually, the ‘good cause’ and ‘potentially meritorious’ requirements
before a stay will be permitted. Indeed, the rationale for permitting a stay would
apply with more force to a petition in which only one of the unexhausted claims
meets the Rhines requirements, but is likely meritorious, than it would to a
petition in which all the unexhausted claims meet the Rhines requirements, but
none are more than potentially meritorious. The efficient approach is for the court
to address the petitioner’s motion for stay and abeyance before reaching
respondents’ exhaustion arguments as to each individual claim. If a stay is
warranted with respect to any single claim, the court need not conduct a claim-by-
claim exhaustion analysis regarding the remaining claims.

McConnell v. Baker, 2012 WL 3100559, at *4 (D. Nev. Jul. 27, 2012). See also Swan v. Coupe,
967 F. Supp. 2d 1008, 1012-13 (D. Del. Sept. 4, 2013) (“When a mixed application contains
more than one unexhausted claim, as in this case, a stay should be granted as long as at least one
unexhausted claim is not plainly meritless.”). Here, the Court has determined that Petitioner’s
jury misconduct claim is potentially meritorious, and accordingly, the Court need not express an
opinion regarding the cognizability or potential merit of any additional unexhausted claims that
Petitioner intends to pursue with his jury misconduct claim.
Finally, there is no indication that Petitioner has engaged in abusive or dilatory litigation
tactics, and Respondent does not argue otherwise. This case remains in its relative infancy and
nothing in the record suggests Petitioner has filed for a stay in order to needlessly delay these
proceedings. Accordingly, the Court GRANTS Petitioner’s motion to stay the proceedings and
hold them in abeyance pending exhaustion of Petitioner’s new claims in state court.

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B. Authorization for Habeas Counsel
Petitioner also requests authorization for his federal habeas counsel to represent him in
filing a motion for leave to file a delayed motion for a new trial and/or a successive post-
conviction petition in state court in order to exhaust his new claims. Petitioner is currently

represented by the Office of the Federal Public Defender, Southern District of Ohio, Capital
Habeas Unit, which was appointed to represent Petitioner in these proceedings pursuant to 18
U.S.C. § 3599(a)(2). (Doc. 6.) Petitioner argues he will not be able to secure adequate
representation in state court because Ohio law does not provide appointed counsel for second or
successive petitions or delayed motions for a new trial. Even if that were not the case, Petitioner
notes that “Warren County has no attorneys certified to be court-appointed counsel for indigent
defendants in capital cases.” (Doc. 26, at PAGEID 11252.) To further complicate matters,
Petitioner’s previous state post-conviction counsel, the Ohio Public Defender, may be called to
testify in the state court proceedings and therefore cannot represent him. Petitioner also
highlights the importance of continuity of counsel in a death penalty case – both as a means to

ensure judicial efficiency and because of the necessity of developing rapport and a personal
relationship with Petitioner.
Section 3599(a)(2) of Title 18 of the United States Code entitles those seeking habeas
corpus relief from a death sentence under 28 U.S.C. § 2254 to the “appointment of one or more
attorneys.” While subsection (a)(2) describes the entitlement to counsel, subsection (e) defines
the scope of appointed counsel’s representation as follows:
Unless replaced by similarly qualified counsel upon the attorney’s own motion or
upon motion of the [petitioner], each attorney so appointed shall represent the
[petitioner] throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
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applications for writ of certiorari to the Supreme Court of the United States, and
all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also represent
the [petitioner] in such competency proceedings and proceedings for executive or
other clemency as may be available to the [petitioner].

18 U.S.C. § 3599(e)(2).
In Harbison v. Bell, the Supreme Court held that representation in state clemency
proceedings is within the scope of representation authorized by § 3599(e) for counsel appointed
in accordance with § 3599(a)(2). 556 U.S. 180, 185–86 (2009). Although the Supreme Court
found that the plain language of the statutory text does not limit appointed counsel’s
representation to only federal proceedings, the scope of the authorization is confined to
“subsequent stage[s] of available judicial proceedings.” Id. at 189–90. Because state post-
conviction proceedings typically precede federal habeas, they are not encompassed within the
statute’s provision for any “subsequent stage” of “available post-conviction process.” The fact
that state post-conviction litigation can sometimes follow federal habeas when a petitioner has
failed to exhaust his claims is not enough to render state post-conviction a stage “subsequent” to
habeas. Id. at 190. But the Supreme Court also identified an exception: exhaustion of a
previously unexhausted habeas claim, where deemed appropriate by the district court, would be
covered by the catch-all provision for representation in “other appropriate motions and
procedures.” Id. at 190 n.7 (finding that “a district court may determine on a case-by-case basis
that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas
representation. . . .”).
The Sixth Circuit has applied Harbison to hold that § 3599 applies to state proceedings
only when adequate representation is not otherwise available. Irick v. Bell, 636 F.3d 289, 291
13
(6th Cir. 2009) (denying federally-funded attorney to reopen state post-conviction because state
law already affords the petitioner adequate representation); see also Hill v. Mitchell, No. 1:98-cv-
452, 2009 WL 2898812, at *5 (S.D. Ohio Sept. 4, 2009) (denying use of federal habeas counsel
for state Atkins hearing because state law already provides for appointed counsel in Adkins

hearings). It has also found representation in state post-conviction inappropriate when federal
habeas proceedings have concluded or the claims to be raised in state court are not reviewable in
federal habeas. See Hand v. Houk, 826 F. App’x 503, 507–08 (6th Cir. 2020) (denying federally-
funded attorney to reopen exhausted claim in state court after federal habeas proceedings have
concluded); see also Lindsey v. Jenkins, No. 1:03-cv-702, 2017 WL 4277201, at *2 (S.D. Ohio
Sept. 26, 2017) (rejecting federally-funded counsel to exhaust Hurst claim in state court when
the motion to amend the habeas petition to add the Hurst claim was denied). In sum, a federal
court may “exercise its discretion in appointing federal habeas counsel to represent their client in
state post-conviction proceedings when the state petition raises issues that are or will be pleaded
in a habeas petition so long as those issues are cognizable in habeas corpus and have not been

previously submitted to the state court, unless the state court itself provides for representation.”
Lindsey, 2017 WL 4277201, at *2 (quoting Conway v. Houk, No. 3:07-cv-345 (S.D. Ohio July 8,
2015) (ECF No. 219, PAGEID # 15605)).
Applying this guidance, courts in this district have found that continued representation by
appointed habeas counsel in state court may be appropriate to facilitate the exhaustion of
unexhausted habeas claims and where state law does not provide for the appointment of counsel.
See, e.g., Myers v. Bagley, Case No. 3:04-cv-174, 2024 WL 3248672 (S.D. Ohio July 1, 2024);
Hunter v. Warden, Case No. 1:15cv209, 2022 WL 3446106 (S.D. Ohio Aug. 16, 2022); Pickens

14
v. Shoop, Case No. 1:19-cv-558, 2022 WL 2802411 (S.D. Ohio July 18, 2022); Conway v. Houk,
Case No. 3:07-cv-345, 2013 WL 6170601, at *3 (S.D. Ohio Nov. 22, 2013); Gapen v. Bobby,
Case No. 3:08-cv-280, 2013 WL5539557, at *4–5 (S.D. Ohio Oct. 8, 2013). Those
circumstances are present here. As the Court has already determined, Petitioner satisfies the

criteria for stay-and-abeyance because his petition is currently mixed, he has demonstrated good
cause for his failure to exhaust his recently discovered habeas claims, and those claims are not
plainly meritless. Petitioner’s federal habeas petition has yet to be adjudicated, the case is in an
early stage of the proceedings, and the anticipated state court proceedings at issue bear upon this
Court’s ability to review the unexhausted claims set forth in the Petition. Moreover, state law
does not entitle Petitioner to the appointment of counsel for a successive or second state post-
conviction petition or to pursue a delayed motion for a new trial. See Hunter, 2022 WL
3446106, at * 4 (citing Gapen, 2013 WL 5539557, at *4-5 (finding no entitlement under Ohio
law for the appointment of counsel to pursue motion for new trial)); Conway, 2013 WL 6170601,
at *2–3 (explaining that the mandatory appointment of counsel only applies to timely-filed first

petitions for postconviction relief (citing State v. Conway, 2013-Ohio-3741, 2013 WL 4679318
(10th Dist. Aug. 29, 2013))). Accordingly, the Court GRANTS Petitioner’s request to extend
habeas counsel’s appointed representation of Petitioner to the exhaustion of his habeas claims in
state court.
IV. CONCLUSION
Petitioner’s motion to stay and hold these proceedings in abeyance pending his return to
state court to exhaust his unexhausted habeas claims is GRANTED. Additionally, his request to
authorize current habeas counsel to represent him in the state court proceedings wherein he seeks

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to exhaust his claims is also GRANTED. Federal counsel are authorized under 18 U.S.C.
§3599(e) to represent Petitioner in connection with his impending motion for leave to file a
delayed motion for a new trial and/or application to file a second post-conviction petition.
Authorization would not extend to any retrial should Petitioner obtain the relief he seeks.
Petitioner has 120 days from the date of this Decision and Order to file his state court
motion and/or petition. Through the duration of the state court litigation, Petitioner shall file
with this Court quarterly status reports on the progression of the state court proceedings. In the
event that he is denied relief in state court, Petitioner must move to lift the stay of this case
within 30 days of a denial of relief. The existing scheduling order (Doc. 11) is VACATED.
IT IS SO ORDERED.

CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665087. Public record. Not legal advice.