The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
QUINCY R. ANDERSON, : Case No. 2:24-cv-1973
:
Petitioner, :
: District Judge Algenon L. Marbley
vs. : Magistrate Judge Elizabeth P. Deavers
:
KIM BROWN, :
:
Respondent. :
:
REPORT AND RECOMMENDATION
Petitioner, a prisoner at the Noble Correctional Institution,1 has filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The petition is brought in
connection with petitioner’s state-court conviction and sentence in the Franklin County Court of
Common Pleas, Case Number 21-CR-000585. Petitioner brings the following four grounds for
relief in the petition:
GROUND ONE: Prosecutor presented a[n] unsworn complaint/affidavit to the
Grand Jury to bound me over to the Common Pleas Court.
GROUND TWO: Judge Kim Brown in Case #21-CR-585 failed to enforce the
Franklin County Court Rules of Practice set into place to prevent unjust lengths of
pretrial detention. She allowed the case to carry on for 3 years prior to any trial.
GROUND THREE: Philip A. Templeton forged my signature on waiver
documents that caused me to be held past the 90 day or 270 day limit and didn’t
explain anything about waiver form..
1 Upon filing the petition, petitioner appears to have been located at the Franklin County
Corrections Center. (See Doc. 1 at PageID 1). However, the Ohio Department of Rehabilitation
and Correction webpage indicates that petitioner is now located at the Noble Correctional
Institution. Viewed at
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A827618.
GROUND FOUR: Circumstances in Franklin County Common Pleas Court that
render such adjudication process ineffective to protect the rights of Defendants in
Criminal Cases the Cases result in a decision that is contrary to, or involve and
unreasonable application of clearly established federal laws.
(Doc. 1 at PageID 6-7).
On May 1, 2024, the undersigned issued an Order for petitioner to show cause why this
action should not be dismissed without prejudice on the ground that petitioner has not exhausted
his available state-court remedies. As noted in the Order, petitioner challenges his convictions in
Franklin County Court of Common Pleas, Case No. 21-CR-000585. (See Doc. 1 at PageID 1).
Based on the documents submitted to the Court and review of the Franklin County Clerk of Court
online docket records, it appears that following a jury trial petitioner was found guilty of
Aggravated Robbery and Murder on January 11, 2024. Petitioner filed a notice of appeal on March
15, 2024, which remains pending in the Ohio Court of Appeals.2 In response to the May 1, 2024
Order, petitioner has filed a motion seeking a stay of these federal habeas corpus proceedings.
(See Doc. 10).
For the reasons stated below, it is recommended that petitioner’s motion be denied and the
petition be dismissed without prejudice.3
2 Viewed at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline under Case No. 24-AP-188.
This Court may take judicial notice of court records that are available online to members of the
public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d
327, 332 n.3 (6th Cir. 1999)).
At the time of the May 1, 2024 Order to show cause, petitioner had a second appeal pending in
Case No. 24-AP-257, which was dismissed as duplicative on May 15, 2024.
3 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts,
the Court “must promptly examine” habeas petitions forwarded by the clerk for initial review and
“must dismiss” a habeas petition “if it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court.” See 28 U.S.C. foll. § 2254. This
Court may sua sponte consider exhaustion. See Eakes v. Sexton, 592 F. App’x. 422, 430-31 (6th
Cir. 2014) (noting that the court may raise non-exhaustion sua sponte); Allen v. Perini, 424 F.2d
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 to first fairly present those claims to the state courts for consideration 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 v. Connor, 404 U.S. 270, 275–76 (1971).
Under the “fair presentation” 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 Ohio
Supreme Court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99–100 (6th Cir. 1985).
If the 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 petition is subject to dismissal without prejudice for failure to exhaust state
remedies. See 28 U.S.C. § 2254(c). Although the exhaustion requirement is not jurisdictional,
and an application for writ of habeas corpus may be denied on the merits notwithstanding the
petitioner’s failure to exhaust state remedies, see 28 U.S.C. § 2254(b)(2), there is a strong
134, 138-39 (6th Cir. 1970)) (“The district court can and must raise the exhaustion issue sua
sponte when it clearly appears that habeas claims have not been presented to the state courts.”).
See also Hargrove v. Warden, Lebanon Corr. Inst., No. 1:16-1011, 2017 WL 3475684, at *4 (S.D.
Ohio Aug. 11, 2017) (Report and Recommendation), adopted, 2018 WL 1007510 (S.D. Ohio Feb.
22, 2018).
presumption in favor of requiring exhaustion of state remedies. See Granberry v. Greer, 481
U.S. 129, 131 (1987). A “mixed” petition containing both unexhausted claims and claims that
have been fairly presented to the state courts is subject to dismissal without prejudice on
exhaustion grounds. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) “preserve[s] Lundy’s
total exhaustion requirement” and “impose[s] a one-year statute of limitations on the filing of
federal habeas petitions. Rhines v. Weber, 544 U.S. 269, 275 (2005). Some federal courts
(including the Sixth Circuit) have adopted a “stay-and-abeyance” procedure to ensure habeas
review is not precluded in the class of cases where a timely-filed federal habeas petition is
dismissed on exhaustion grounds and the petitioner subsequently returns to federal court to
present his claims in a renewed petition after exhausting his state remedies only to find that his
claims are barred from review by the one-year statute of limitations set forth in 28 U.S.C. §
2244(d)(1). Griffin v. Rogers, 308 F.3d 647, 652 & n.1 (6th Cir. 2002); Palmer v. Carlton, 276
F.3d 777, 778–81 (6th Cir. 2002).
In Rhines, 544 U.S. at 276, the Supreme Court affirmed that district courts have the
discretion to issue stays in habeas cases, but such discretion is circumscribed to the extent it must
“be compatible with AEDPA’s purposes.” The Court pointed out that one of AEDPA’s purposes
is to “reduce delays in the execution of state and federal criminal sentences” based on the “well-
recognized interest in the finality of state judgments.” Id. (quoting Woodford v. Garceau, 538
U.S. 202, 206 (2003), and Duncan v. Walker, 533 U.S. 167, 179 (2001)). In addition, AEDPA’s
statute of limitations tolling provision was intended to “reinforce[] the importance of Lundy’s
“simple and clear instruction to potential litigants: before you bring any claims in federal court,
be sure that you first have taken each one to state court.” Id. at 276–77 (quoting Lundy, 455 U.S.
at 520).
The Supreme Court went on to determine:
Stay and abeyance, if employed too frequently, has the potential to undermine these
twin purposes. Staying a federal habeas petition frustrates AEDPA’s objective of
encouraging finality by allowing a petitioner to delay the resolution of the federal
proceedings. It also undermines AEDPA’s goal of streamlining federal habeas
proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state
court prior to filing his federal petition. . . .
For these reasons, stay and abeyance should be available only in limited
circumstances.
Id. at 277.
The Supreme Court held that stay and abeyance “is only appropriate when the district
court determines there was good cause for the petitioner’s failure to exhaust his claims first in
state court,” and that, “even if a petitioner had good cause for that failure,” it would be an abuse
of discretion for the court to grant a stay where the unexhausted claims “are plainly meritless” or
the “petitioner engages in abusive litigation tactics or intentional delay.” Id. at 277–78. 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.” Id. at 278.
A stay in this case is not warranted. First, this is not a mixed petition containing both
exhausted and unexhausted claims. Although petitioner claims he exhausted all his “pre-trial
remedies at his disposal” in the trial court (see Doc. 10 at PageID 13), petitioner acknowledges
that he has not yet exhausted his state court remedies, as he has not presented any of his claims to
the Ohio Court of Appeals or Ohio Supreme Court.4 See O’Sullivan, 526 U.S. at 842; Hafley,
902 F.2d at 483; Leroy, 757 F.2d at 97, 99–100. Second, a stay of the case while petitioner
exhausts his claims in the state courts is not warranted here because dismissal of the petition will
not trigger any concerns about a potential statute of limitations bar to review of a future federal
habeas petition. See, e.g., Smith v. Warden, No. 1:20-cv-994, 2021 WL 3487489, at n.5 (S.D.
Ohio Aug. 9, 2021) (Report & Recommendation), adopted, 2021 WL 3883890 (S.D. Ohio Aug.
31, 2021); Pruitt v. Ohio, No. 1:10-cv-313, 2010 WL 2607246, at *3 & n.2 (S.D. Ohio May 19,
2010) (Report & Recommendation), adopted, 2010 WL 2620804 (S.D. Ohio June 25, 2010);
Mingo v. Michigan, No. 1:06-cv-24, 2006 WL 151901, at *3 (W.D. Mich. Jan. 18, 2006). Under
28 U.S.C. § 2244(d)(1)(A), petitioner has one year from the date on which his judgment becomes
final “by the conclusion of direct review or the expiration of the time for seeking such review.”
Because petitioner’s direct appeal remains pending, dismissal of the petition without prejudice
on exhaustion grounds will not trigger concerns regarding the statute of limitations.
Accordingly, in sum, petitioner’s motion seeking a stay (Doc. 10) should be DENIED
and the petition, filed before petitioner exhausted his state court remedies, should be
DISMISSED without prejudice for lack of exhaustion.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s pro se petition for a writ of habeas corpus (Doc. 1) be DISMISSED
without prejudice to refiling after petitioner has exhausted all available state court remedies and
petitioner’s motion seeking a stay (Doc. 10) be DENIED.
2. A certificate of appealability should not issue because, for the foregoing reasons,
petitioner has not made a substantial showing of the denial of a constitutional right that is
4 Petitioner, though counsel, was granted an extension of time until September 16, 2024 to file
his appellate brief.
remediable at this juncture in this proceeding. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any
application by petitioner to proceed on appeal in forma pauperis, 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).
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Date: August 22, 2024 s/ Elizabeth A. Preston Deavers____
Elizabeth A. Preston Deavers
United States Magistrate Judge