IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

HECTOR A. H. JUAN, 

 

 Petitioner, 

 Case No. 2:17-cv-1056 

 v. Judge George C. Smith 

 Magistrate Judge Jolson 

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTE, 

 Respondent. 

OPINION AND ORDER 

 On April 25, 2018, the Magistrate Judge issued a Report and Recommendation

recommending that Respondent’s Motion to Dismiss (ECF No. 9) be granted, that Petitioner’s 

Motion to Stay (ECF No. 3) be denied, and that this action be dismissed without prejudice as 

unexhausted. (ECF No. 12.) Petitioner has filed an Objection to the Magistrate Judge’s Report 

and Recommendation. (ECF No. 15.) 

 Petitioner challenges the September 2016 Corrected Judgment Entry of sentence issued 

by the Franklin County Court of Common Pleas imposing an aggregate term of thirteen years to 

life incarceration on his March 8, 2012, convictions on three counts of gross sexual imposition 

and two counts of rape. The docket of the Franklin County Clerk indicates that Petitioner has 

been appointed counsel, and has an appeal currently pending. Plainly, therefore, this habeas 

corpus action remains unexhausted and subject to dismissal on that basis. Petitioner nonetheless 

seeks a stay of proceedings so as to avoid being barred from any future re-filing by the one-year 

statute of limitations provided for under 28 U.S.C. § 2244(d). 
2 

 Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The Court 

makes no determination regarding the impact of the one-year statute of limitations on any future 

re-filing of this action here. However, and for the reasons discussed in the Magistrate Judge’s 

Report and Recommendation, the record simply does not reflect that a stay is warranted under 

the standard set forth in Rhines v. Weber, 544 U.S. 269 (2005). 

 Therefore, for the reasons detailed in the Magistrate Judge’s Report and

Recommendation, Petitioner’s Objection (ECF No. 15) is OVERRULED. The Report and

Recommendation (ECF No. 12) is ADOPTED and AFFIRMED. The Motion to Stay (ECF No. 

3) is DENIED. The Motion to Dismiss (ECF No. 9) is GRANTED. This action is hereby 

DISMISSED without prejudice as unexhausted. 

 The Court DECLINES to issue a certificate of appealability. 

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States 

District Courts, the Court now considers whether to issue a certificate of appealability. “In 

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal 

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v. 

Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a 

habeas petitioner to obtain a certificate of appealability in order to appeal). 

When a claim has been denied on the merits, a certificate of appealability may issue only 

if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a 

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 
3 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been 

denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes 

that jurists of reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling. Id. 

The Court is not persuaded that reasonable jurists would debate this Court’s denial of 

Petitioner’s motion for a stay and the dismissal of this action without prejudice as unexhausted. 

The Court therefore DECLINES to issue a certificate of appealability. 

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in 

good faith and that an application to proceed in forma pauperis on appeal should be DENIED. 

The Clerk is DIRECTED to enter final JUDGMENT. 

 IT IS SO ORDERED. 

 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT