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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

JOSE ARROYO-GARCIA, 

Petitioner, : Case No. 2:17-cv-984 

- vs - Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Michael R. Merz 

Warden, 

 Noble Correctional Institution 

 : 

 Respondent. 

DECISION AND ORDER DENYING MOTION FOR STAY 

 

 This habeas corpus case is before the Court on Petitioner’s Motion to Stay (ECF No. 14). 

In the Motion, Petitioner seeks a stay so that he can exhaust state court remedies by moving for a 

delayed appeal pursuant to Ohio S.Ct.Prac.R. 7.01(A)(4), of the September 27, 2016 decision of 

the state court of appeals. State v. Arroyo-Garcia, 10th Dist. No. 15AP-890, 2016-Ohio-7006. 

 A motion to stay is a pre-trial nondispositive matter on which a Magistrate Judge has initial 

decisional authority, subject to review by the District Judge under Fed.R.Civ.P. 72(a). 

 As Arroyo-Garcia admitted in his Traverse, he did not take an appeal from that decision 

within the forty-five days allowed for such an appeal by Ohio S.Ct.Prac.R. 7.01(A)(1) (ECF No. 

7, PageID 361-62). As noted in the Report and Recommendations, that time limit has been 

accepted by the United States Court of Appeals for the Sixth Circuit as an adequate an independent 

state ground of decision (ECF No. 9, PageID 386, citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th

Cir. 2004)). 

 Ohio S.Ct.Prac.R. 7.01(A)(4) does allow a motion for delayed appeal in felony cases, so it 
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is applicable to Petitioner. The rule also has not absolute time limit, so petitioner is not timebarred from seeking a delayed appeal. However, the fact that the Supreme Court of Ohio has 

authority to accept a delayed appeal does not mean that the forty-five day time limit is not 

consistently enforced. The Sixth Circuit in Bonilla already held to the contrary. 

 In Beard v. Kindler, 558 U.S. 53, 60 (2009), the Supreme Court held “a discretionary rule 

can serve as an adequate ground to bar federal habeas review.” In Walker v. Martin, 562 U.S. 307, 

311, 316-17 (2011), it held unanimously that a California rule that requires state habeas to be filed 

“as promptly as the circumstances allow” and without “substantial delay,” confers discretion but 

does not mean the rule is not firmly established and regularly followed. Recognizing the impact 

of these cases, the Sixth Circuit has now held 

Beard and Walker, when read together, permit a state procedural 

rule to serve as an adequate state ground for preventing review of a 

habeas petition even if the state rule accords courts broad discretion. 

As a result of the Supreme Court’s decision in Walker, Deitz [v. 

Money, 391 F.3d 804 (6th Cir. 2004)] is no longer the controlling law 

on this issue in our Circuit, and a petitioner’s failure to follow Ohio 

Rule of Appellate Procedure 5(A) can serve as the basis for a 

procedural default of a petitioner’s habeas claims. 

Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011). 

[A] discretionary rule can be “firmly established” and “regularly 

followed”--even if the appropriate exercise of discretion may permit 

consideration of a federal claim in some cases but not others. See 

Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 

1128, 1140 (1986) (“[R]efusals to exercise discretion do not form 

an important independent category under the inadequate state 

ground doctrine”). 

A contrary holding would pose an unnecessary dilemma for the 

States: States could preserve flexibility by granting courts discretion 

to excuse procedural errors, but only at the cost of undermining the 

finality of state court judgments. Or States could preserve the 

finality of their judgments by withholding such discretion, but only 
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at the cost of precluding any flexibility in applying the rules. 

Beard, 558 U.S. at 60-61. 

 Therefore, the existence of discretion in the Supreme Court of Ohio to allow a delayed 

appeal does not undermine the recommendation in the Report and Recommendations to dismiss 

the First Ground for Relief for procedural default (ECF No. 9, PageID 387). 

 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. 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 

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. 

Rhines v. Weber, 544 U.S. 269, 277, 278 (2005). “Staying a federal habeas petition frustrates 

AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of 

federal proceedings. Id. at 277. 

 Petitioner has not shown good cause for his delay in seeking a delayed direct appeal. 

Petitioner has known at least since receipt of the letter from the Supreme Court of Ohio sent to 
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him on March 30, 2017, of the procedure for seeking a delayed direct appeal (See letter attached 

to Motion, ECF No. 14, PageID 407). However, he has not yet filed with that court. He reminds 

us that “[t]he determination of whether good cause exists for delayed review lies solely with the 

state supreme court.” Id. at PageID 404. While that is certainly true and the Supreme Court of 

Ohio could, in its sole discretion, grant a delayed appeal, this Court has an independent obligation 

under Rhines to decide whether Petitioner had good cause not to exhaust before filing here. 

 Moreover, as Arroyo-Garcia understands, he must also demonstrate that his claims have 

sufficient merit to warrant a stay (Motion, ECF No. 14, PageID 404). 

 The first claim he wishes to present on delayed direct appeal is that his guilty plea was not 

knowing, intelligent, and voluntary because dismissing the major drug offender specification did 

not make the aggravated trafficking counts to which he pleaded “lesser-included offenses.” 

(Motion, ECF No. 14, PageID 404). 

 Arroyo-Garcia was indicted on one count of aggravated trafficking in methamphetamine 

and eight counts of trafficking in cocaine in an amount exceeding 100 grams, all felonies of the 

first degree (Indictment, State Court Record, ECF No. 6-1, Ex. 1, PageID 82-85). There is no 

separate specification for being a major drug offender. Arroyo-Garcia pleaded guilty to Counts 2, 

3, 4, and 9 of the Indictment, each of which charged him with trafficking in cocaine in an amount 

between 27 and 100 grams (Entry of Guilty Plea, State Court Record, ECF No. 6-1, Ex. 6, PageID 

96). It cannot be reasonably debated that trafficking in cocaine in an amount between 27 grams 

and 100 grams is a lesser included offense of trafficking in cocaine in an amount more than 100 

grams. Arroyo-Garcia’s first intended proposition of law to raise on delayed appeal is without 

merit. 

 The second claim Petitioner wishes to present is a claim of double jeopardy. He asserts 
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that because drug offenses have no identifiable victims, all of his drug trafficking convictions 

should merge under Ohio Revised Code § 2941.25 (Motion, ECF No. 14, PageID 405). 

 The offenses to which Arroyo-Garcia pleaded guilty occurred on April 7, 2014; April 10, 

2014; April 11, 2014; and May 1, 2014 (Indictment, State Court Record, ECF No. 6-1, Ex. 1, 

PageID 82-83, 85). Thus these offenses occurred “separately,” as that word is used in Ohio 

Revised Code § 2941.25(B). Petitioner argues that because these offenses involved a similar 

modus operandi (offer to sell by telephone) or the convictions all arose out of the same 

investigation (Motion, ECF No. 14, PageID 405). Nothing in Ohio jurisprudence suggests that 

four separate offers to sell drugs committed as these offenses were would be merged as arising 

from the same course of conduct. To construe the law in that way would be absurd: once a drug 

dealer had made one successful sale, the law would provide no disincentive from his continuing. 

 Therefore Arroyo-Garcia’s double jeopardy1

 claim is without merit. 

Conclusion 

 Because Petitioner has not shown good cause for failing to exhaust his remedy of delayed 

appeal and because the claims he would raise in such an appeal are without merit, he is not entitled 

to a stay under Rhines, supra. The Motion to Stay Proceedings (ECF No. 14) is DENIED. 

June 4, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

 

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 The Magistrate Judge elides any discussion about the overlap od the Double Jeopardy Clause and Ohio Revised 

Code § 2941.25. Suffice to say that if a defendant has no good claim under Ohio Revised Code § 2941.25, then he 

will also not have a good Double Jeopardy claim. Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014).