Hill v. Mitchell
| Decision Date | 21 December 1998 |
| Docket Number | No. C-1-98-452.,C-1-98-452. |
| Citation | 30 F.Supp.2d 997 |
| Parties | Genesis HILL, Petitioner, v. Betty MITCHELL, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Randall Lee Porter, State Public Defender's Office, Federal Death Penalty Resource, Columbus, OH, Steven Brown, Columbus, OH, for Petitioner.
Michael Louis Bachman, Ohio Attorney General, Capital Crimes Section, Cincinnati, OH, for Respondent.
Petitioner, a prisoner sentenced to death by the State of Ohio, has initiated habeas corpus proceedings under 28 U.S.C. § 2254. This matter is before the Court on petitioner's motion to hold the proceedings in abeyance, respondent's memorandum in opposition, and petitioner's reply. For the following reasons, petitioner's motion will be denied, without prejudice to renewal.
Petitioner initiated these habeas corpus proceedings on June 19, 1998 by filing a notice of intent to file a habeas corpus petition (docket # 1), a motion for appointment of counsel (docket # 2), and a motion to proceed in forma pauperis (docket # 3). On June 26, 1998, following a status conference held several days earlier, petitioner filed a habeas corpus action, with leave to file an amended action within sixty (60) days (docket # 6). Later that day, this Court issued a stay of execution (docket # 10). On November 2, 1998, following two extensions of time granted by this Court for further factual development and for the filing of petitioner's amended habeas corpus action, petitioner filed instead a motion to hold the proceedings in abeyance. That motion is presently before the Court.
In the motion to hold the proceedings in abeyance, counsel for petitioner argue that recently discovered facts—facts which could not have been discovered sooner — have given rise to three new constitutional claims for certain, as well as the possibility of three more constitutional claims beyond those. Petitioner insists that he could not have discovered the facts underlying these claims until now, due to the state courts' refusal to appoint experts to assist him during his post-conviction proceedings, or to permit discovery during those postconviction proceedings. One of petitioner's attorneys, Attorney Steven Brown, further submits as a reason for the failure to uncover and develop these claims sooner his own inexperience and lack of resources. Because these claims have never been presented to the state courts, petitioner asks this Court to hold these proceedings in abeyance while he pursues a successor postconviction action in the state courts. Petitioner argues that this Court has the authority to stay these proceedings, and insists that the failure to do so could irreparably prejudice him insofar as the Ohio Supreme Court could set a new execution date were this Court to lift its stay of execution, and because an exhaustion-based dismissal could prevent petitioner from filing a new petition due to the new statute of limitations under 28 U.S.C. § 2244(d). Petitioner argues in the alternative that, should this Court elect not to hold these proceedings in abeyance, it should at least safeguard petitioner's rights by dismissing the action without prejudice to his re-filing the action under the original case number once he exhausts state remedies.
Respondent opposes the motion, arguing that petitioner has procedurally defaulted his new claims by failing to timely raise them in the state courts. Respondent further argues that petitioner seeks to transform this Court's stay of execution into a vehicle for circumventing procedural rules established by the Ohio Supreme Court, insofar as the Ohio Supreme Court does not ordinarily countenance more than one round of collateral relief for a death row prisoner. Respondent further argues that petitioner's explanation for why he could not have discovered the facts underlying these claims sooner is unreasonable. Finally, respondent further insists that this Court is precluded under Steffen v. Tate, 39 F.3d 622, 626 (6th Cir.1994) from delaying this habeas corpus action indefinitely.
It is well settled that, before a federal habeas court may grant relief on a constitutional claim, that claim must be exhausted in the state courts. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir.1993). The exhaustion requirement is "an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).
It would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.
Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950). Out of this concern, and the desire to avoid piecemeal litigation in federal district courts, came the "total exhaustion" rule announced in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). There, the Supreme Court held that, "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. at 522, 102 S.Ct. 1198. Of course, exhaustion, while serving these important interests, is neither absolute nor jurisdictional. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). An "extraordinary case" requiring "prompt federal intervention" may call upon a federal habeas court to overlook nonexhaustion. Weaver v. Foltz, 888 F.2d 1097, 1100 (6th Cir.1989), citing Granberry v. Greer, supra. With these principles in mind, the Court turns to petitioner's motion to hold these proceedings in abeyance.
Petitioner essentially asks this Court both to allow him to file a mixed habeas corpus petition, and then to hold these habeas corpus proceedings in abeyance while he returns to state court to exhaust several new claims in a successor state postconviction action. In the alternative, petitioner asks this Court to dismiss his habeas corpus action without prejudice to him re-filing the petition under the same case number, once he exhausts his state court remedies. Respondent, on the other hand, asks this Court to find that the new claims advanced by petitioner are barred by procedural default because they were not timely presented to the state courts. After careful consideration, the Court does not subscribe to either party's view.
As a threshold matter, the Court doubts that it has the jurisdiction to permit petitioner to assert his unexhausted claims in an amended petition and then hold the habeas corpus proceedings in abeyance. At least two federal courts of appeals have squarely held that a district court does not have the authority to hold a mixed habeas corpus petition in abeyance pending exhaustion of state remedies. See Victor v. Hopkins, 90 F.3d 276, 282 (8th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1091, 137 L.Ed.2d 224 (1997); Murray v. Wood, 107 F.3d 629, 632 (8th Cir.1997); see also Calderon v. United States District Court for the Northern District of California, 134 F.3d 981 (9th Cir. 1998). Several other federal courts have suggested that, only under the most exceptional of circumstances would a district court have the authority to hold a mixed habeas corpus petition in abeyance pending the exhaustion of state remedies. Christy v. Horn, 115 F.3d 201, 207-208 (3rd Cir.1997); Parker v. Johnson, 988 F.Supp. 1474 (N.D.Ga.1998).1 However, it seems clear from the decisions cited by petitioner that the Court can choose to hold the current action, consisting of only exhausted claims, in abeyance while petitioner pursues his additional claims in state court. The issue then becomes whether that power should be exercised in this case.
Initially, the Court rejects respondent's argument that petitioner's new claims are barred by procedural default. The Court will not make a decision as to procedural default concerning claims that have yet to be presented to the state courts, when the Ohio postconviction statute does permit a successive petition, filed out of time, if certain prerequisites are met. See R.C. § 2953.23(A). The Court simply does not know, and is not inclined to speculate, if the Ohio courts would find that these prerequisites have been satisfied. That decision is best...
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...of the stay on the public interest, including the "judiciary's interest in efficiency, economy, and fairness." Hill v. Mitchell, 30 F. Supp.2d 997, 1000 (S.D. Ohio 1998)(citing Landis, supra, and applying factors to motion to stay habeas petition). One circumstance that counsels in favor of......
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