UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

D’JANGO HENDRIX,

Petitioner,

vs.

WARDEN, LEBANON 

CORRECTIONAL INSTITUTION, 

Respondent.

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Case No. 1:17-cv-623

Judge Timothy S. Black

Magistrate Judge Stephanie K. 

Bowman

DECISION AND ENTRY

ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 36)

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Stephanie K. Bowman. 28 U.S.C. § 636 (b). Pursuant to such 

reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on 

August 10, 2021, submitted a Report and Recommendations. (Doc. 36). No objections 

were filed, and the time for filing objections has since expired.

The Court has reviewed the Report and Recommendations, is satisfied that there is 

nothing clearly erroneous or contrary to law on the face of the record, and accepts the 

Magistrate Judge’s recommendations. Fed. R. Civ. P. 72. 

Accordingly:

1. The Report and Recommendations (Doc. 36) is hereby ADOPTED; 

2. The petition (Doc. 1) is administratively STAYED and TERMINATED

on the Court’s active docket pending the adjudication of Petitioner’s motion 

to certify the record and pending appeal in the Ohio Court of Appeals Case 

No. C1900701. The stay is conditioned on Petitioner filing a motion to 

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reinstate the case on this Court’s active docket within 30 days of the Ohio 

court ruling on his motion to certify the record and the Ohio Court of 

Appeals and Ohio Supreme Court have ruled on his pending appeal. 

Petitioner is granted leave to reinstate the case on the Court’s active docket 

based on a showing that he has complied with the conditions of the stay. 

3. The motion to expand the record (Doc. 27) is DENIED without prejudice,

subject to refiling upon reopening this case.

4. The motion for extension of time (Docs. 35) is DENIED.

5. A certificate of appealability SHALL 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. Cf. Porter v. White, No. 01-CV72798-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(unpublished) (citing Henry v. Dep’t of Corrections, 197 F.3d 1361 (11th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

(3d 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.

6. The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal of

this Order would not be taken in good faith and therefore DENIES

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).

IT IS SO ORDERED. 

Date: 

Timothy S. Black

United States District Judge

8/31/2021 s/Timothy S. Black

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