UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SEAN ZEIGLER, Case No. 1:18-cv-580

Petitioner,

Barrett, J.

vs Bowman, M.J.

WARDEN, LEBANON ORDER AND REPORT 

CORRECTIONAL INSTITUTION, AND RECOMMENDATION

Respondent.

Petitioner, a prisoner at the Lebanon Correctional Institution, has filed a pro se petition 

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

petitioner’s motion for stay and abeyance (Doc. 8), motion to strike motion for stay and 

abeyance (Doc. 11), and motion for leave to file an amendment to his petition (Doc. 12). For the 

reasons stated below, petitioner’s motion to amend is granted, his motion to strike is denied, and 

the undersigned recommends that petitioner’s motion to stay be granted. 

In the petition, petitioner challenges his Hamilton County, Ohio convictions for 

aggravated burglary, rape, felonious assault, and tampering with evidence. Petitioner raises the 

following four grounds for relief in the petition: 

GROUND ONE: The trial court committed reversible error in denying petitioner’s 

suppression of the DNA evidence because his consent was coerced rendering it 

involuntary because after he requested an attorney, the officers made forceful 

statements that left the petitioner to believe it would be fruitless to refuse consent 

which violated petitioner’s Fourth, Fifth and Fourteenth Amendment rights. 

GROUND TWO: Petitioner was denied a fair trial when due process under the 

Fifth and Fourteenth Amendment were violated due to prosecutor and witness 

misconduct when the serologist gave false testimony about the source of the DNA 

in her report and the prosecutor relied on the false testimony during examination 

and closing arguments.

GROUND THREE: Trial counsel rendered ineffective assistance violating 

petitioner’s Sixth Amendment right for failing to rebut forensic evidence of rape in 

allowing false testimony by the serologist that contradicted her lab report to go 
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unquestioned and unchallenged.

GROUND FOUR: Appellate counsel was ineffective violating petitioner’s Sixth 

Amendment right for failing to raise winning issues in my direct appeal, but for 

appellate counsel’s unreasonable and unjustifiable errors, the appeal would have 

resulted in a different outcome.

(Doc. 1). On December 18, 2018, respondent filed a return of writ in opposition to the petition. 

(Doc. 6). According to respondent, petitioner’s grounds for relief are procedurally defaulted, 

non-cognizable, and without merit. 

On January 8, 2019, petitioner filed a motion to stay this action while he pursues a 

petition for post-conviction relief in the trial court. (Doc. 8). In the post-conviction petition, 

which remains pending in the Ohio trial court, petitioner raises two claims of ineffective 

assistance of trial counsel. First, petitioner claims that his trial counsel was ineffective for failing 

to investigate and present letters from Raymond Lear—a fellow prisoner and the boyfriend of the 

victim in petitioner’s case—which he claims are exculpatory.1

 Petitioner also claims counsel 

was ineffective for failing to investigate issues related to his detention during police 

interrogation. According to petitioner, he was prevented from raising these claims earlier 

because he was not provided with the Lear letters from trial counsel until after he filed his habeas 

corpus petition. Petitioner claims that he only obtained the letters after petitioner pursued a 

grievance against his trial counsel and counsel was compelled to provide them to him. 

Respondent has filed a response in opposition to petitioner’s motion. Respondent argues 

 1 Petitioner indicates that the letters from Lear stated that if petitioner’s girlfriend agreed not to testify against Lear, 

that Lear would convince his girlfriend (the victim in petitioner’s case) to drop the charges she had against 

petitioner. (See Doc. 8 at PageID 1253). Petitioner claims Lear “wrote that he didn’t want petitioner doing any time 

for something that’s not true.” (Id.). 
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that staying this action is not appropriate because petitioner has not raised the claims asserted in 

his post-conviction petition as grounds for relief in this action. Respondent further contends that 

petitioner failed to demonstrate that the claims are potentially meritorious. (Doc. 10). 

Apparently in response to respondent’s opposition, petitioner subsequently filed a motion 

to strike his motion to stay (Doc. 11) and a motion for leave to file an amendment to his habeas 

petition. (Doc. 12). Petitioner notes in his motion to strike that he filed the stay motion 

prematurely, before he had the opportunity to file a motion to amend the petition. Petitioner 

indicates that he intends to refile the motion to stay after the Court has ruled on his motion to 

amend. 

In the motion to amend, petitioner seeks to add the following two grounds for relief to his 

petition: 

GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL 

(a) Supporting facts: Trial counsel was ineffective which deprived appellant of his 

sixth amendment right when he failed to investigate and present evidence in the 

form of inmate to inmate correspondence letters sent to appellant from Ramon 

Lear for impeachment that proved that he and his girlfriend fabricated the 

charges against appellant to get Mr. Lear out of jail and ultimately proved 

appellants actual innocence and supported the theory of the defense. 

GROUND SIX: INEFFECTIVE ASSISTANCE OF COUNSEL

(b) Supporting facts: Trial counsel was ineffective when he failed in his duty to 

investigate witnesses who may have information concerning his client’s 

detention in the police station during the suppression hearing. Trial counsel’s 

failure to conduct a prompt investigation of the circumstances of the case and 

explore avenues leading to relevant facts to the merit of the case, thereby 

causing prejudice to Zeigler, denying him due process of the law and a fair trial, 

a violation of the sixth amendment right to effective assistance of counsel. 

(Doc. 12 at PageID 1374). Respondent has not filed an opposition to petitioner’s motion to 
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amend. 

Fed. R. Civ. P. 15, which governs pleading amendments in civil cases, is applicable to 

federal habeas corpus proceedings. Mayle v. Felix, 545 U.S. 644, 655 (2005). The factors that the 

Court should consider in determining whether to grant leave to amend include “[u]ndue delay in 

filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure 

deficiencies by previous amendments, undue prejudice to the opposing party, and futility of 

amendment.” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 

125, 130 (6th Cir. 1994)). 

After considering the above factors and for good cause shown, petitioner’s motion to 

amend the petition to include the above fifth and sixth ground for relief is GRANTED. (Doc. 12). 

Petitioner’s motion to strike his motion for stay and abeyance (Doc. 8) is DENIED. As noted 

above, petitioner seeks to strike the motion and refile it after the Court rules on his motion to 

amend. Petitioner need not refile his motion to stay this action. 

With respect to petitioner’s motion for stay and abeyance, the undersigned finds that 

petitioner should be afforded the opportunity to exhaust the claims raised in his pending postconviction petition in the state courts. An application for a writ of habeas corpus by a state 

prisoner shall not be granted unless the petitioner has exhausted his state court remedies, there is 

an absence of available state corrective process, or circumstances exist that render such process 

ineffective to protect petitioner’s rights. 28 U.S.C. § 2254(b)(1). A state defendant with federal 

constitutional claims is required to first fairly present those claims to the state courts for 

consideration because of the equal obligation of the state courts to protect the constitutional 

rights of criminal defendants, and in order to prevent needless friction between the state and 
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federal courts. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor,

404 U.S. 270, 275–76 (1971). Under the “fair presentation” requirement, “state prisoners must 

give the state courts one full opportunity to resolve any constitutional issues by invoking one 

complete round of the State’s established appellate review process,” which, in Ohio, includes 

discretionary review in the Ohio Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 

97, 99–100 (6th Cir. 1985).

If the petitioner fails to fairly present his claims through the requisite levels of state 

appellate review, but still has an avenue open to him in the state courts by which he may present 

the claims, his petition is subject to dismissal without prejudice for failure to exhaust state 

remedies. See 28 U.S.C. § 2254(c). Although the exhaustion requirement is not jurisdictional, 

and an application for a writ of habeas corpus may be denied on the merits notwithstanding the 

petitioner’s failure to exhaust state remedies, see 28 U.S.C. § 2254(b)(2), there is a strong 

presumption in favor of requiring exhaustion of state remedies. See Granberry v. Greer, 481 

U.S. 129, 131 (1987). A “mixed” petition containing both unexhausted claims and claims that 

have been fairly presented to the state courts is subject to dismissal without prejudice on 

exhaustion grounds. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).

Since the enactment in 1996 of the Antiterrorism and Effective Death Penalty Act 

(AEDPA), which “preserved Lundy’s total exhaustion requirement,” but also imposed a one-year 

statute of limitations on the filing of federal habeas petitions, Rhines v. Weber, 544 U.S. 269, 275 

(2005), some federal courts (including the Sixth Circuit) have adopted a “stay-and-abeyance” 

procedure to ensure habeas review is not precluded in the class of cases where a timely-filed 
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federal habeas petition is dismissed on exhaustion grounds and petitioner subsequently returns to 

federal court to present his claims in a renewed petition after exhausting his state remedies only 

to find that his claims are barred from review by the one-year statute of limitations set forth in 28 

U.S.C. § 2244(d)(1). See, e.g., Griffin v. Rogers, 308 F.3d 647, 652 & n.1 (6th Cir. 2002);

Palmer v. Carlton, 276 F.3d 777, 778–81 (6th Cir. 2002).

In Rhines, 544 U.S. at 276, the Supreme Court affirmed that district courts have the 

discretion to issue stays in habeas cases, but that such discretion is circumscribed to the extent it 

must “be compatible with AEDPA’s purposes.” The Court pointed out that one of the AEDPA’s 

purposes is to “reduce delays in the execution of state and federal criminal sentences” based on 

the “well-recognized interest in the finality of state judgments.” Id. (quoting Woodford v. 

Garceau, 538 U.S. 202, 206 (2003), and Duncan v. Walker, 533 U.S. 167, 179 (2001)). In 

addition, the AEDPA’s statute of limitations tolling provision was intended to “reinforce[] the 

importance of Lundy’s “simple and clear instruction to potential litigants: before you bring any 

claims in federal court, be sure that you first have taken each one to state court.” Id. at 276–77 

(quoting Lundy, 455 U.S. at 520). 

The Court went on to determine that:

Stay and abeyance, if employed too frequently, has the potential to undermine these 

twin purposes. Staying a federal habeas petition frustrates AEDPA’s objective of 

encouraging finality by allowing a petitioner to delay the resolution of the federal 

proceedings. It also undermines AEDPA’s goal of streamlining federal habeas 

proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state 

court prior to filing his federal petition. . . .

For these reasons, stay and abeyance should be available only in limited 

circumstances.

Id. at 277.
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The Court held that 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,” and that, “even if a petitioner had good cause for that failure,” it would be an abuse of 

discretion for the court to grant a stay where the unexhausted claims “are plainly meritless” or 

the “petitioner engages in abusive litigation tactics or intentional delay.” Id. at 277–78. 

However, 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 278.

In the absence of clear guidance from the Supreme Court, the federal courts have differed 

as to what constitutes “good cause” within the meaning of Rhines. See, e.g., Williams v. Hurley,

No. 2:05-cv-985, 2006 WL 1650771, at *10–11 (S.D. Ohio June 6, 2006) (Report & 

Recommendation) (King, M.J.) (discussing the split in authority as to whether “cause standard of 

Rhines requires a lesser showing than that for procedural default” and whether ineffective 

assistance of counsel during state post-conviction proceedings may constitute “good cause for 

failure to exhaust claims in state proceedings”), adopted, 2006 WL 1804550 (S.D. Ohio June 28, 

2006) (Holschuh, J.) (unpublished); see also Tolliver v. Sheets, No. 2:05-cv-1161, 2007 WL 

2462650, at *17–18 (S.D. Ohio Aug. 27, 2007) (Smith, J.; King, M.J.) (unpublished). 

In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court stated that a 

“petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily 

constitute ‘good cause’ for him to file” a petition containing unexhausted claims in the federal 

court. Some courts have concluded that this statement in Pace supports a more expansive 
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definition of good cause. See, e.g., Tullis v. Kontah, No. 2:06cv1025, 2007 WL 915197, at *5–6 

(S.D. Ohio Mar. 26, 2007) (Graham, J.; King, M.J.) (unpublished) (citing Ninth Circuit decision 

in Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005), and Baker v. Horn, 383 F. Supp. 2d 

720, 747 (E.D. Pa. 2005)); see also Hnatiuk v. Trombley, No. 06-13880, 2008 WL 3305157, at 

*4 (E.D. Mich. Aug. 11, 2008) (unpublished) (quoting Rhines v. Weber, 408 F. Supp. 2d 844, 

849 (D.S.D. 2005) (on remand from Supreme Court’s decision in Rhines)). In Tullis, after 

detailing the “broad and varied” split in authority, the Court concluded with the following 

quotation from Riner v. Crawford, 415 F. Supp. 2d 1207, 1209–11 (D. Nev. 2006):

[T]he discussions by the Pennsylvania court in Baker and the Ninth Circuit in 

Jackson support . . . [the] conclusion that the good cause standard applicable in 

consideration of a request for stay and abeyance of a federal habeas petition requires 

the petitioner to show that he was prevented from raising the claim, either by his 

own ignorance or confusion about the law or the status of his case, or by 

circumstances over which he had little or no control, such as the actions of counsel 

either in contravention of the petitioner’s clearly expressed desire to raise the claim 

or when petitioner had no knowledge of the claim’s existence.

Tullis, supra, 2007 WL 915197, at *6. 

In this case, the undersigned recommends that the petition be stayed so that petitioner 

may attempt to exhaust the ineffective assistance of counsel claims raised in Ground Five and 

Six and in his pending post-conviction petition in the state courts. At this point in the 

proceedings, the Court cannot conclude that petitioner’s unexhausted claims are “plainly 

meritless” or that petitioner has engaged in abusive litigation tactics or intentional delay. Rhines, 

544 U.S. at 277–78. Furthermore, if the Court were to dismiss the petition without prejudice 

instead of staying the case, any subsequent petition filed by petitioner raising the claims alleged 

here may be subject to dismissal on statute of limitations grounds.
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Accordingly, in sum, after weighing the Rhines factors, for good cause shown, and out of 

concern that the dismissal of the petition at this juncture might unreasonably impair future 

federal review of any of petitioner’s grounds for habeas corpus relief, it is RECOMMENDED 

that petitioner’s motion for stay and abeyance (Doc. 8) be GRANTED and that the instant 

proceedings be STAYED while petitioner is afforded the opportunity to fully exhaust his state 

court remedies. To ensure that judicial and administrative resources are conserved, it is 

FURTHER RECOMMENDED that the stay take the form of an administrative stay and that 

the case be terminated on the Court’s active docket.

IT IS THEREFORE ORDERED THAT:

Petitioner’s motion for leave to file and amendment to his habeas petition (Doc. 12) is 

GRANTED and his motion to strike (Doc. 11) is DENIED. 

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner’s motion for stay and abeyance be GRANTED (Doc. 8) and the petition 

(Doc. 1) be administratively STAYED and TERMINATED on the Court’s active docket 

pending petitioner’s exhaustion of his Ohio remedies. The stay should be conditioned on 

petitioner’s filing a motion to reinstate the case on this Court’s active docket within thirty (30) 

days after fully exhausting his state court remedies through the requisite levels of state appellate 

review. Petitioner should be granted leave to reinstate the case on the Court’s active docket 

when he has exhausted his Ohio remedies based on a showing that he has complied with the 

conditions of the stay. 

2. A certificate of appealability should 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 
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recommended stay of the petition so that petitioner can exhaust available state court remedies. 

Cf. Porter v. White, No. 01-CV-72798-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 (3rd 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.2

3. With respect to any application by petitioner to proceed on appeal in forma pauperis, 

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting 

this Report and Recommendation would not be taken in “good faith,” and therefore DENY

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).

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge

 2 Because this Court finds the first prong of the Slack standard has not been met in this case, it need not address the 

second prong of Slack as to whether or not “jurists of reason” would find it debatable whether petitioner has stated 

viable constitutional claims for relief in his habeas petition. See Slack, 529 U.S. at 484.
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SEAN ZEIGLER, Case No. 1:18-cv-580

Petitioner,

Barrett, J.

vs Bowman, M.J.

WARDEN, LEBANON

CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).