United States District Court, E.D. Kentucky, Central Division, Frankfort
JOSHUA T. HAMMOND, Petitioner,
DON BOTTOM, Warden, Respondent.
A.Ingram United States Magistrate Judge
January 4, 2018, the Court ordered petitioner Joshua Hammond
to file, on or before Monday, February 5, 2018, “a
brief addressing whether there exists good cause to stay this
matter and whether his pending appeal is plainly
meritless.” D.E. 4. The Court warned that failure to do
so “will result in a recommendation of
dismissal.” Id. This is that recommendation.
January 3, 2018, state prisoner Joshua Hammond, through
counsel, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (D.E 1), followed by an
accompanying memorandum (D.E. 3). According to the petition
and accompanying documents, Hammond was convicted by a
Kentucky jury in 2014 of one count each of first-degree
robbery, first-degree assault, reckless homicide, and
tampering with physical evidence. D.E. 1 at 1. Between
conviction and sentencing, Hammond and the Commonwealth
reached a sentencing agreement that avoided sentencing by
jury. D.E. 1-1 at 1. The Franklin Circuit Court accepted the
agreement and sentenced Hammond to 25 years. Id.
Hammond appealed to the Kentucky Supreme Court, which in
December 2016 reversed the assault conviction. Id.
at 13-14. The Supreme Court otherwise affirmed the
convictions, and remanded for resentencing. Id. at
new judgment, entered in October 2017, again imposed a
25-year sentence. D.E. 1-2.
November 22, 2017, Hammond filed an appeal of his new
judgment with the Kentucky Supreme Court (case number
2017-SC-629). D.E. 1-2. Hammond alleges in his new state
appeal that he was improperly denied the right to sentencing
by jury. Id. This appeal remains pending and has not
yet been briefed. D.E. 1 at 4.
petition raises the same issues contained in his original
appeal, along with the issue raised in his pending appeal.
D.E. 1 at 5, 7, 8. Accordingly, the issue raised in his
pending appeal (violation of his right to a jury at the
penalty stage) is not yet exhausted. See id. at 3.
Hammond's petition is a mixed petition, containing both
exhausted and unexhausted claims.
federal court cannot entertain a habeas corpus petition that
contains unexhausted claims. 28 U.S.C. § 2254(b)(1). The
Sixth Circuit has instructed that “ordinarily, a
district court should stay . . . unexhausted claims pending
exhaustion rather than dismiss them without prejudice.”
Griffin v. Rogers, 308 F.3d 647, 652 (6th Cir.
2002). District courts confronted with a mixed petition
containing potentially meritorious unexhausted claims
ordinarily “should stay the petition and hold it in
abeyance pending prompt exhaustion of state remedies, rather
than dismissing the petition without prejudice.”
Sueing v. Palmer, 503 Fed.Appx. 354, 357 (6th Cir.
2012) (quoting Banks v. Jackson, 149 Fed.Appx. 414,
421 (6th Cir. 2005)).
Supreme Court has upheld district courts' discretion to
stay mixed petitions pending exhaustion, but only “when
the district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court.” Rhines v. Weber, 544 U.S. 269, 277
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
[is] Petitioner's burden to demonstrate to the district
court that he had good cause for failing to exhaust his
claims in state court, [and] that his unexhausted claims were
not plainly without merit.” Sueing, 503
Fed.Appx. at 357; accord Wagner v. Smith, 581 F.3d
410, 419 (6th Cir. 2009).
does not explain why he filed this petition prior to
exhausting his state remedies. Nor does he provide any reason
for the Court to find his unexhausted claim is not plainly
meritless. His filings contain little insight into the merits
of his claims and reference no case law. All he states
concerning his pending state claim is that he plans to argue:
“[A] Bifurcated Penalty Stage should be permitted
before a jury. The Plea Bargain at first trial was
incorrect.” D.E. 1 at 3. His Notice of Appeal, filed
along with his habeas petition, is similarly vague:
“the issue that is to be presented involves the
Agreement of Defendant with the Commonwealth at Jury Trial,
as to the waiving of the Jury Sentencing phase in exchange
for the original Judgment.” D.E. 1-2 at 2.
Court provided Hammond, who is at least nominally represented
by counsel, until February 5 to provide this Court a basis
for staying his petition rather than dismissing it. D.E. 4.
Hammond has not done so. Accordingly, the undersigned
RECOMMENDS that the Petition (D.E. 1) be
DISMISSED WITHOUT PREJUDICE for failure to
comply with the exhaustion requirement of 28 U.S.C. §
Court directs the parties to 28 U.S.C. § 636(b)(1) for
appeal rights and mechanics concerning this Recommended
Disposition, issued under subsection (B) of the statute.
See also Rules Governing Section 2254 Proceedings,
Rule 8(b). Within fourteen days after being served with a
copy of this decision, any party may serve and file specific
written objections to any or all findings or recommendations
for determination, de novo, by the District Court.
Failure to make a timely objection consistent with the
statute and rule may, and normally will, result in waiver of
further appeal ...