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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

CURTIS MOODY, 

Petitioner, : Case No. 3:18-cv-139 

- vs - District Judge Walter H. Rice 

Magistrate Judge Michael R. Merz 

TOM SCHWEITZER, Warden, 

 Lebanon Correctional Institution 

 : 

 Respondent. 

DECISION AND ORDER DENYING MOTION FOR STAY 

 

 This habeas corpus case, brought pro se by Petitioner Curtis Moody, is before the Court on 

Petitioner’s Motion for a Stay of this Court’s consideration of his Motion for Relief from Judgment 

pending the outcome of a motion for new trial in the Common Pleas Court of Montgomery County, 

Ohio (ECF No. 60). 

 A Motion for Stay is a non-dispositive matter which can be decided by an assigned 

Magistrate Judge in the first instance, subject to objection under Fed.R.Civ.P. 72(a). 

 District courts have authority to grant stays in habeas corpus cases to permit exhaustion of 

state court remedies in consideration of the AEDPA’s preference for state court initial resolution 

of claims. Rhines v. Weber, 544 U.S. 269 (2005). However, in recognizing that authority, the 

Supreme Court held: 

[S]tay and abeyance should be available only in limited 

circumstances. Because granting a stay effectively excuses a 

petitioner's failure to present his claims first to the state courts, stay 

and abeyance is only appropriate when the district court determines 

there was good cause for the petitioner's failure to exhaust his claims 

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first in state court. Moreover, even if a petitioner had good cause for 

that failure, the district court would abuse its discretion if it were to 

grant him a stay when his unexhausted claims are plainly meritless. 

Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas 

corpus may be denied on the merits, notwithstanding the failure of 

the applicant to exhaust the remedies available in the courts of the 

State"). . . . 

On the other hand, 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 engaged in intentionally dilatory litigation tactics. 

Id. at 277-278. “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging 

finality by allowing a petitioner to delay the resolution of federal proceedings. Id. 

 Moody seeks a stay pending his presentation of newly-discovered evidence to the trial 

court, to wit, the Report of Questioned Documents Examiner Burt Baggett that the name of the 

physician who performed the autopsy in this case, Dr. Lenehan, was printed on a trial exhibit by 

Dayton Police Detective Thomas Cope. Although Moody has presented Baggett’s Report to this 

Court, he gives no indication that has filed anything in the Common Pleas Court as yet. 

 Because Moody’s conviction for the murder of James Farr occurred almost six years ago, 

he must first obtain the permission of the Common Pleas Court to file a motion for new trial, 

showing that he was “unavoidably prevented” from filing the motion within fourteen days of 

verdict. Ohio R. Crim. P. 33(B). Presumably he will tell that court that the reason for the delay is 

that Baggett’s Report did not exist until June 3, 2021. 

 Moody’s Motion for Stay is DENIED for the following reasons. 

 First of all, there is no pending mixed habeas petition before this Court. Instead, the Court 

entered final judgment dismissing the Petition on May 18, 2020 (ECF No. 47). The Petition was 

not mixed at that time; all claims decided then were exhausted. That judgment has been affirmed 

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by the Sixth Circuit. Moody v. Harris, Case No. 20-3618 (6th Cir. Aug. 26, 2020)(copy at ECF 

No. 52). That court made no suggestion that the Petition was mixed. Thus the rationale for a stay 

under Rhines – preserving a petitioner’s statute of limitations opportunity – is not present here. 

 Secondly, a Rhines stay is not justified when the underlying claim is “plainly meritless.” 

The Magistrate Judge’s analysis to that effect is included in a Substituted Report and 

Recommendations on Petitioner’s Motion for Relief from Judgment filed contemporaneously with 

this Decision. 

October 25, 2021. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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