UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES E. BROWN, Case No. 1:17-cv-583
Petitioner,
Barrett, J.
Vi Litkovitz, M.J.

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
NOTICE

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).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES E. BROWN, Case No. 1:17-cv-583

Petitioner,

Barrett, J.

Vv. Litkovitz, M.J.
WARDEN, CHILLICOTHE REPORT AND
CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, brings
this case seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before
the Court on petitioner’s motion to stay the proceedings pending exhaustion. (Doc. 6).
Respondent has filed a response indicating no objection to the requested stay. (Doc. 7, at
PagelID 40).

Good cause appearing therefor, the Court recommends that the motions to stay (Doc. 6)
be granted. See Rhines v. Weber, 544 U.S. 269 (2005) (district courts have discretion to hold
mixed petition in abeyance pending exhaustion of unexhausted claims).

Accordingly, IT IS HEREBY RECOMMENDED that the instant proceedings be
STAYED while petitioner is afforded the opportunity to fully exhaust his state court remedies.
To ensure that judicial and administrative resources are conserved, it is FURTHER
RECOMMENDED that the stay take the form of an administrative stay and that the case be
terminated on the Court’s active docket.

IT IS THEREFORE RECOMMENDED THAT:

1. The petition (Doc. 1) be administratively STAYED and TERMINATED on the
Court’s active docket pending petitioner’s exhaustion of his Ohio remedies. The stay should be

conditioned on petitioner’s filing a motion to reinstate the case on this Court’s active docket


within thirty (30) days after fully exhausting his state court remedies through the requisite levels

of state appellate review. Petitioner should be granted leave to reinstate the case on the Court’s

active docket when he has exhausted his Ohio remedies based on a showing that he has complied
with the conditions of the stay.

2. A certificate of appealability should not issue under the standard set forth in Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000), which is applicable to this case involving a
recommended stay of the petition so that petitioner can exhaust available state court remedies.
& Porter v. White, No. 01-CV-72798-DT, 2001 WL 902612, at *3 (E.D. Mich. Aug. 6, 2001)
(unpublished) (citing Henry v. Dep't of Corrections, 197 F.3d 1361 (11th Cir. 1999) (pre-Slack
case)) (certificate of appealability denied when case dismissed on exhaustion grounds). See
generally Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998); Christy v. Horn, 115 F.3d
201, 203-206 (3rd Cir. 1997) (order staying habeas petition to allow exhaustion of state remedies
is appealable collateral order). “Jurists of reason” would not find it debatable whether this
Court is correct in its procedural ruling that petitioner has failed to exhaust state court remedies
and that the case should be stayed (as opposed to dismissed without prejudice) pending
exhaustion of such remedies.!

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting

this Report and Recommendation would not be taken in “good faith,” and therefore DENY

"Because this Court finds the first prong of the Slack standard has not been met, it need not address the
second prong as to whether or not “jurists of reason” would find it debatable whether petitioner has stated viable
constitutional claims for relief in his habeas petition. See Slack, 529 U.S. at 484.


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).

Date: _7/3! hg Larner
Karen L. Litkovitz

United States Magistrate Judge