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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

CALVIN McKELTON, 

 Petitioner, 

v. Case No. 1:18-cv-134 

 CHIEF JUDGE ALGENON L. MARBLEY 

TIM SHOOP, Warden, Magistrate Judge Kimberly A. Jolson 

Chillicothe Correctional Institute, 

 Respondent. 

 OPINION AND ORDER

 Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this 

Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court for 

consideration of Petitioner’s Motion to Stay and Hold Proceedings in Abeyance Pending State 

Court Litigation, (ECF No. 55), and the Warden’s Response, (ECF No. 56.) Also before the 

Court is Petitioner’s Notice of Pending State Court Litigation, (ECF No. 57), and accompanying 

exhibits, (ECF Nos. 57-1, 57-2, 57-3.) For the reasons that follow, the Court DENIES

Petitioner’s motion to stay. 

I. BACKGROUND 

Petitioner Calvin McKelton was convicted in Butler County, Ohio, of the February 2009 

aggravated murder of Germaine (“Mick”) Evans and the July 2008 murder of Margaret 

(“Missy”) Allen. After the mitigation phase and jury recommendation, the trial court sentenced 

Petitioner to death for the aggravated murder of Evans, and 15 years to life in prison for the 

murder of Allen. The Ohio Supreme Court set forth a full recitation of the facts of the case in its 

September 13, 2016, Opinion affirming Petitioner’s conviction and sentence. State v. McKelton, 

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148 Ohio St.3d 261, 261-68 (2016). 

After unsuccessfully pursuing state post-conviction relief, Petitioner initiated the instant 

federal habeas corpus proceedings pursuant to 28 U.S.C. § 2254. On December 18, 2018, 

Petitioner filed a Petition for Writ of Habeas Corpus setting forth twenty-two claims for relief. 

(ECF No. 22.) On February 24, 2022, the Court permitted Petitioner to file an unopposed 

Amended Petition, “add[ing] citations to the state court record, essential case law, and clarifying 

language to his existing claims to aid the Court and parties as they move forward with the case.” 

(ECF No. 53, at PAGEID # 9054; ECF No. 54.) 

II. REQUEST FOR A STAY 

On March 9, 2022, Petitioner filed the instant Motion to Stay and Hold Proceedings in 

Abeyance, pending the imminent filing of a state post-conviction petition asserting that pursuant 

to newly enacted Ohio Rev. Code § 2929.025, he is ineligible to be executed, because he was 

seriously mentally ill at the time of the offense. (ECF No. 55.) Petitioner concedes that he is 

“returning to state court to litigate a newly created state law right.” (Id. at PAGEID # 9295) 

(emphasis added). Nevertheless, Petitioner seeks a stay of these federal proceedings on the basis 

that “[a] return to state court to litigate this post-conviction petition may eliminate all penalty 

phase claims currently pending before the Court,” and “[a] stay of the proceedings is appropriate 

to conserve this Court’s limited resources, provide the state courts with the opportunity to review 

the merits of Mr. McKelton’s petition and, if appropriate, resentence Mr. McKelton.” (Id. at 

PAGEID # 9295-96.) On May 2, 2022, Petitioner filed a Notice of Pending State Court 

Litigation, and attached for the Court’s review the petition for post-conviction relief he filed in 

the Butler County, Ohio, Court of Common Pleas. (ECF No. 57.) 

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 Respondent opposes Petitioner’s request to stay the proceedings for two reasons. First, 

Respondent argues that a stay is not appropriate in this case, because the Amended Petition does 

not contain any unexhausted claims. (ECF No. 56, at PAGEID # 9303.) Secondly, Respondent 

argues that Petitioner’s new state law claim that he is ineligible to be executed due to serious 

mental illness is uniquely a state law claim that is not cognizable in federal habeas corpus. (Id.) 

III. DISCUSSION 

A district court “has broad discretion to stay proceedings as an incident to its power to 

control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). The party seeking the stay 

must “show that there is pressing need for delay, and that neither the other party nor the public 

will suffer harm from entry of the order.” FTC v. E.M.A. Nationwide, 767 F.3d 611, 627-28 (6th 

Cir. 2014) (quoting Ohio Envtl. Council v. U.S. Dist. Ct., S. Dist. Ohio, 565 F.2d 393, 396 (6th 

Cir. 1977)). “The district court must also consider whether granting the stay will further the 

interest in economical use of judicial time and resources.” Id. at 628 (quoting Int’l Bhd. Elec. 

Workers v. AT&T, 879 F.2d 864, 1989 WL 78212, at *8 (6th Cir. 1989)). “Whether a stay is 

appropriate, and thus whether the proponent has met its burden, ‘requires examining the 

circumstances of the particular case.’” Ohio A. Philip Randolph Inst. v. Householder, No. 1:18-

CV-357, 2019 WL 507240, at *1 (S.D. Ohio Feb. 8, 2019) (quoting Ohio State Conf. of 

N.A.A.C.P. v. Husted, 769 F.3d 385, 387 (6th Cir. 2014)). 

The Antiterrorism and Effective Death Penalty Act (AEDPA) does not deprive district 

courts of the authority to issue stays in habeas litigation, but the Court must also consider the 

compatibility of granting a stay with the AEDPA’s purposes of encouraging finality and 

incentivizing petitioners to exhaust all claims in state court before filing for habeas relief. Rhines 

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v. Weber, 544 U.S. 269, 276-77 (2005). Under AEDPA, a petitioner must first exhaust his 

constitutional claims in the state courts before presenting them in federal court. 28 U.S.C. § 

2254(b); see Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). If a habeas petitioner has the 

right under state law to raise a constitutional claim by any available procedure, the claim is not 

exhausted. 28 U.S.C. § 2254(b), (c). A habeas petitioner bears the burden of demonstrating 

exhaustion of the available state-court remedies with respect to the claims presented for federal 

habeas review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987). 

A district court may stay a “mixed petition” containing both exhausted and unexhausted 

claims to permit a petitioner to present his unexhausted claim to the state courts, and then to 

return to federal court for review. Rhines v. Weber, 544 U.S. 269 (2005). The Rhines stay-andabeyance process was developed to manage the issue of mixed-habeas petitions after the AEDPA 

imposed a one-year statute of limitations for filing habeas petitions. Prior to the passage of the 

AEDPA, federal courts dismissed mixed petitions without prejudice to allow petitioners to first 

raise their unexhausted claims in state court before returning to federal court to present their 

perfected petitions. Id. at 274 (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). But the 

introduction of the AEDPA’s one-year statute of limitations meant that petitioners could be 

barred from returning to federal court after exhausting their claims in state court due to the 

expiration of the limitations period. Id. at 275. As a result, the Supreme Court held that district 

courts may stay a habeas petition and hold it in abeyance while the petitioner returns to state 

court to exhaust his unexhausted claims when those claims are not plainly meritless and the 

petitioner has shown good cause for his failure to exhaust the claims earlier. Id. at 277. The 

Court emphasized, however, that stay-and-abeyance should only be available in limited 

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circumstances, so as not to undermine the AEDPA’s objectives of streamlining habeas 

proceedings and encouraging finality. Id. at 276-78. 

Importantly, the mere fact that a petitioner may have a separate claim pending in state 

court does not render the current federal petition a “mixed” petition. See Wycuff v. Haviland, 

No. 2:19cv3549, 2020 WL 529299, at *6 (S.D. Ohio Feb. 3, 2020) (quoting Jackson v. Sloan, 

2018 WL 7269782, at *7 (N.D. Ohio Sept. 25, 2018)), report and recommendation adopted at 

2020 WL 7382074 (S.D. Ohio Dec. 16, 2020). Although some courts have extended Rhines to 

stay unmixed petitions when a collateral proceeding with a federal claim is pending in state 

court, other “courts, including lower courts within the Sixth Circuit, have declined to extend 

Rhines stay-and-abeyance to petitions . . . containing only [exhausted] claims.” Callender v. 

Warden, Ross. Corr. Inst., No. 2:16-cv-1120, 2017 WL 3674909, at *3 (S.D. Ohio Aug. 24, 

2017) (quoting Peterson v. Warden, Pickaway Corr. Inst., No. 1:14-cv-604, 2015 WL 3970171, 

at *7 (S.D. Ohio June 30, 2015), report and recommendation adopted at 2017 WL 4076495 

(Sept. 13, 2017) (collecting cases). 

Here, the Amended Petition does not contain any unexhausted claims, and the pending 

state court proceedings do not raise any cognizable federal claims. Petitioner seeks state postconviction relief pursuant to newly enacted ORC § 2929.025, which makes a person diagnosed 

as suffering from a qualifying serious mental illness at the time of the offense ineligible for the 

death penalty. This is exclusively a state law claim, as there exists no such comparable federal 

constitutional right. As such, Petitioner’s state law proceedings are independent from the instant 

federal habeas case, and this Court has no authority to review the state law decision on this 

matter. Moreover, Petitioner will not be harmed by the denial of a stay, as he may litigate both 

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his state post-conviction action and his federal habeas petition simultaneously. Granting a stay 

under these circumstances would undermine the AEDPA’s dual objectives of streamlining 

habeas proceedings and encouraging finality. 

For the foregoing reasons, Petitioner’s Motion to Stay and Hold Proceedings in 

Abeyance, (ECF No. 55), is DENIED. 

IT IS SO ORDERED. 

 _____________________________________ 

 ALGENON L. MARBLEY 

 CHIEF UNITED STATES DISTRICT JUDGE 

DATED: June 23, 2022 

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