
    Ronald DUDLEY, Petitioner, v. WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent.
    Case No. 3:11-cv-349.
    United States District Court, S.D. Ohio, Western Division at Dayton.
    April 16, 2012.
    Ronald E. Dudley, Marion, OH, pro se.
    M. Scott Criss, Columbus, OH, Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Respondent.
   ORDER ADOPTING REPORT AND RECOMMENDATION (DOC. 21)

THOMAS M. ROSE, District Judge.

The Court has reviewed the Report and Recommendations of United States Magistrate Judge Michael J. Newman (doc. 21), to whom this case was referred pursuant to 28 U.S.C. § 636(b) and Fed.R.Crim.P. 59, and noting that no objections have been filed thereto and that the time for filing such objections under Fed.R.Civ.P. 59(b)(2) has expired, hereby ADOPTS said Report and Recommendation.

It is therefore ORDERED that Petitioner’s motion to stay (doc. 11) is DENIED; Respondent’s motion to dismiss (doc. 16) is GRANTED; Petitioner’s § 2254 petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE; and the case is TERMINATED on the Court’s docket.

REPORT AND RECOMMENDATION

MICHAEL J. NEWMAN, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 2254, Petitioner Ronald Dudley (“Petitioner” or “Dudley”), proceeding pro se, brings this petition for a writ of habeas corpus. After filing his habeas petition, Petitioner moved to stay his federal habeas case during the pendency of his direct appeal in state court. See doc. 11. Respondent filed a memorandum in opposition to Petitioner’s motion to stay, and also moved to dismiss Petitioner’s habeas petition. Docs. 15, 16. Both motions have been fully briefed. See docs. 18,19, 20.

I. PROCEDURAL HISTORY

In August 2008, Petitioner was convicted by jury verdict of rape, kidnapping, two counts of attempted rape, and gross sexual imposition in the Montgomery County Court of Common Pleas. Doc. 19-22. He was sentenced to a total of twenty to fifty years imprisonment. Doc. 19-23.

With the assistance of counsel, Petitioner appealed his conviction to the Ohio Second District Court of Appeals, raising several assignments of error. Docs. 19-26, 19-28, 19-29. On July 9, 2010, 2010 WL 2706318, the Ohio Court of Appeals sustained one of Petitioner’s assignments of error — his counsel was ineffective for not objecting to the trial court’s imposition of separate sentences on (1) the rape and gross sexual imposition counts and (2) the rape and two attempted rape counts — finding they were crimes of “allied offenses of similar import” under Ohio Rev.Code § 2941.25. Doc. 19-30 at PagelD 477-80. Accordingly, the appellate court remanded the case to the trial court for a new sentencing hearing. Id. at PagelD 483.

The State of Ohio appealed and Petitioner cross-appealed to the Ohio Supreme Court. Docs. 19-32, 19-34. On October 27, 2010, 126 Ohio St.3d 1619, 935 N.E.2d 856 (2010), the Ohio Supreme Court denied leave to appeal and cross-appeal on the grounds that the appeals did not involve any substantial constitutional questions. See doc. 19-37.

In accordance with the Ohio Court of Appeals’ decision, Petitioner was re-sentenced on December 21, 2010. Doc. 19-60. The trial court merged the attempted rape and gross sexual imposition counts with the rape count. Id. Petitioner was re-sentenced to a total of twenty to fifty years imprisonment. Id.

Petitioner, represented by counsel, appealed his re-sentencing to the Ohio Second District Court of Appeals. Doc. 61. Petitioner’s counsel filed an Anders brief, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there were no issues meriting appellate review. Doc. 19-62. The Ohio Court of Appeals then allowed Petitioner to file a pro se brief, and Petitioner did so, raising five assignments of error. Doc. 19-64.

Upon a review of Petitioner’s pro se brief, the Court of Appeals determined that two assignments of error had arguable merit. See doc. 12-1. Accordingly, on December 5, 2011, the Court of Appeals ordered that new counsel be appointed to represent Petitioner on appeal. See id. This appeal is still pending in the Ohio Second District Court of Appeals as Case No. 24408. See does. 11,19.

While his direct appeal has been pending, Petitioner has filed numerous motions in the trial court. See docs. 19-38, 19-40, 19-55, 19-58. Petitioner has also filed a petition for post-conviction relief under Ohio Revised Code § 2953.21(A)(1) in the Montgomery County Common Pleas Court, doc. 19-42, and an application to reopen his appeal from the denial of his petition for post-conviction relief under Ohio App. R. 26(B) in the Ohio Second District Court of Appeals. Doc. 19-53. In its reply to the motion to dismiss, Respondent laid out the lengthy procedural history of Petitioner’s criminal ease, and attached all relevant documents from. the state court proceedings. See doc. 19.

On October 6, 2011, Petitioner filed his petition for a writ of habeas corpus in this Court. Doc. 3. He then moved to stay this case on December 14, 2011. Doc. 11. In response, Respondent moved to dismiss the case without prejudice — arguing there is no reason to stay the case when Petitioner’s direct appeal is pending in the Ohio Court of Appeals, and the limitations period for his habeas petition has not even commenced.

II. ANALYSIS

This Court should only use its authority to stay a habeas petition in limited circumstances. Rhines v. Weber, 544 U.S. 269, 276-77, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). Accordingly, Petitioner must show good cause for the Court to issue a stay. Id. at 277,125 S.Ct. 1528.

The Court finds there is no good cause to stay Petitioner’s habeas petition given that the limitations period on his claims has not even commenced. 28 U.S.C. § 2244(d) provides a one-year limitations period for filing § 2254 habeas petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). “Final judgment in a criminal ease means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (citation omitted). Accordingly, in this case, Petitioner’s § 2244 “limitations period [does] not begin to run until both his conviction and, sentence ‘[becomes] final by the conclusion of direct review or the expiration of the time for seeking such review.’ ” Id. at 156-57, 127 S.Ct. 793 (brackets added). Accord Foster v. Warden, No. 1:11-cv-256, 2012 WL 10345, at *1-4, 2012 U.S. Dist. LEXIS 267, at *3-10 (S.D.Ohio Jan. 3, 2012); Johnson v. Warden, No. 1:09-cv-336, 2010 WL 2889056, at *5-7, 2010 U.S. Dist. LEXIS 72968, at *13-20 (S.D.Ohio June 23, 2010). To be clear, the limitations period does not begin to run on any of Petitioner’s habeas claims — even those not concerning his re-sentencing — until the conclusion of his direct appeal. See Johnson, 2010 WL 2889056, at *6-7, 2010 U.S. Dist. LEXIS 72968, at *17-18.

Petitioner recognizes that some of his current habeas claims are similar to the issues pending in his direct appeal before the Ohio Second District Court of Appeals, which apparently is why he requested a stay of this case. See doc. 11. He seems to be concerned that the statute of limitations will expire — barring him from seeking federal habeas relief — if he waits until the conclusion of his direct appeal. See id. However, as explained above, such is not the case. Therefore, in order to preserve the finality of state court judgments, Petitioner’s federal habeas petition should be dismissed without prejudice. See Rhines, 544 U.S. at 276-77,125 S.Ct. 1528.

The Court notes that such a dismissal does not bar Petitioner from later filing a habeas petition. Once his direct appeal has concluded or the time for seeking such review has expired, Petitioner may file a habeas petition in this Court, raising the same grounds for relief as he has herein.

III. RECOMMENDATION

Based on the foregoing analysis, it is respectfully RECOMMENDED that:

1. Petitioner’s motion to stay (doc. 11) be DENIED;

2. Respondent’s motion to dismiss (doc. 16) be GRANTED;

3. Petitioner’s § 2254 petition for a writ of habeas corpus be DISMISSED WITHOUT PREJUDICE; and

4. This case be TERMINATED on the Court’s docket. 
      
      . Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
     