IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Christopher Moncrief,

Petitioner

 v.

Warden, Warren Correctional

Institution,

Respondent

:

:

:

:

:

Civil Action 2:10-cv-00117

Judge Holschuh

Magistrate Judge Abel

ORDER

Petitioner Christopher Moncrief, an Ohio prisoner, brings this action under 28

U.S.C. § 2254 challenging his criminal conviction in the Franklin County Common Pleas

Court for murder with a three year gun specification. This matter is before the

Magistrate Judge on petitioner's February 16, 2010 motion to stay this federal habeas

corpus lawsuit while he pursues motions to withdraw his guilty pleas and for a new

trial in the Ohio courts (doc. 4).

After eight days of trial, Moncrief pleaded guilty to the reduced charge of

murder with a three year gun specification. An aggravated robbery charge was

dismissed. On June 8, 2006, the trial court sentenced Moncrief to fifteen years to life

imprisonment and a consecutive three year sentence for the gun specification. Moncrief

did not appeal the judgment and sentence. 

On June 27 and again on July 26, 2006, Moncrief sent letters to the Common Pleas

Court asking to withdraw his guilty plea. On October 24, 2006, the trial judge denied

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Moncrief's request to withdraw his guilty plea. 

Earlier, on September 14, 2006, Moncrief filed a notice of appeal and motion for

leave to appeal to the Ohio Court of Appeals for the Tenth District. On January 25, 2007,

the Court of Appeals denied the motion for leave to appeal.

On January 7, 2007, Moncrief filed a petition for postconviction relief in the trial

court alleging that he was denied the effective assistance of counsel, denied counsel of

his choice, and was coerced into pleading guilty. On March 5, 2007, Moncrief filed

another motion to withdraw his guilty plea in the trial court. On January 25, 2008, the

trial court denied the postconviction petition and the motion to withdraw his guilty

plea. 

On February 28, 2008, petitioner filed a timely notice of appeal from the

Common Pleas Court's decision. On September 11, 2008, the Court of Appeals affirmed

the trial court’s decision. Moncrief filed a timely appeal to the Supreme Court of Ohio.

On February 4, 2009, that Court denied petitioner leave to appeal.

On June 27, 2007, Moncrief filed a second delayed appeal from the June 6, 2006

sentence and judgment entry. On August 30, 2007, the Court of Appeals denied the

second motion for delayed appeal. Moncrief filed a timely appeal to the Supreme Court

of Ohio. On January 23, 2008, the Supreme Court denied him leave to appeal.

On December 16, 2008, Moncrief filed a motion for new trial and a third motion

to withdraw his guilty plea. On January 7, 2010, the Common Pleas Court denied the

motion for a new trial. On February 1, 2010, Moncrief appealed that decision. 

Petitioner Moncrief's federal habeas corpus petition alleges two grounds for

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relief:

GROUND ONE: Petitioner was denied due process right to fair trial.

Supporting Facts: The trial court converted a direct attack into a collateral

attack where the direct attack is properly filed under proper case numbers

pursuant to a specific rule of court in violation of petitioner’s 14th

Amendment rights under the United States Constitution.

GROUND TWO: Petitioner was denied effective assistance of counsel.

Supporting Facts: The trial court erred when it denied petitioner’s motion

to withdraw guilty plea in violation of petitioner’s 6th and 14th

Amendment rights under the United States Constitution. 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) advances the

states’ significant interest in the finality of criminal convictions. Stays undermine

finality and the AEDPA's provisions that encourage prisoners to timely present all of

their federal claims to the state court at the earliest opportunity. Rhines v. Weber, 544

U.S. 269, 277-78 (2005). Stays should be used sparingly. They should not be granted

when the unexhausted grounds are plainly meritless. 544 U.S. at 278. Further, before a

court can stay a habeas corpus action, the petitioner must demonstrate good cause for

having failed to exhaust his state court remedies. Id. Nonetheless, 

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 en-gaged in intentionally dilatory

litigation tactics.

Id.; see also Griffin v. Rogers, 399 F.3d 626, 632-33 (6th Cir. 2005)(citations omitted); Palmer

v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). A stay must be time limited, and the petitioner has the obligation to promptly present his unexhausted claims to the state courts

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and to promptly return to federal court once he has exhausted his state court remedies. 

544 U.S. at 278; Palmer v. Carlton, 276 F.3d at 781.

Petitioner has been attempting to withdraw his guilty plea ever since his June 27,

2006 letter seeking to withdraw the guilty plea he made 19 days before. He has had

ample opportunity to present his constitutional arguments to the Ohio courts. They

have repeatedly rejected those arguments. Petitioner has failed to explain why his

repeated motions attacking his guilty plea should be the basis for a stay. He does not

point to any new arguments not previously presented because they were then

unavailable to him. The State's interest in the finality of its criminal adjudications is

controlling here. Accordingly, petitioner's February 16, 2010 motion to stay this federal

habeas corpus lawsuit while he pursues motions to withdraw his guilty pleas and for a

new trial in the Ohio courts (doc. 4) is DENIED.

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and

Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days

after this Order is filed, file and serve on the opposing party a motion for

reconsideration by the District Judge. The motion must specifically designate the

Order, or part thereof, in question and the basis for any objection thereto. The District

Judge, upon consideration of the motion, shall set aside any part of this Order found to

be clearly erroneous or contrary to law.

s/Mark R. Abel 

United States Magistrate Judge

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