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14-903 - Boles v. Warden, Chillicothe Correctional Institution


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14-903 - Boles v. Warden, Chillicothe Correctional Institution
December 7, 2015
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ORDER that respondent's 8 Motion to Dismiss the petition and 9 petitioner's Motion to stay the case are Denied as moot to the extent those motions pertain to pertitioner's ineffective-assistance-of-appellate-counsel claims, which have since been exhausted in state reopening proceedings that concluded in July 2015. REPORT AND RECOMMENDATION that respondent's 8 MOTION to Dismiss be Denied and petitioner's 9 MOTION to stay the case be Granted to the extend that the ineffective-assistance-of-trial-counsel claim in Ground Three (3) of the peition is unexhausted because it is still pending before the state courts in post-convictiion proceedings that were initiated by petitioner in May 2015. The instant petition 1 should be administratively Stayed and Terminated on the Court's active docket pending petitioner's exhaustion of the Ohio post-conviction remedy. 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 the state post-conviction avenue of relief through the requisite levels of appeallate review. Petitioner should be granted leave to reinstate the case on the Court's active docket when he has exhausted the claim in the state courts based on showing that he has complied with the conditions of the stay. ( Objections to R&R due by 12/24/2015). Signed by Magistrate Judge Karen L. Litkovitz on 12/7/2015. (art)
January 12, 2016
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ORDER adopting Report and Recommendation 16; denying the motion to dismiss; granting the motion to stay; administratively closing case pending exhaustion of state court remedies. A certificate of appealability will not issue. Petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 1/12/16. (mb)