United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge
the Court is the motion to stay and abey his petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254
pending exhaustion of state remedies (DN 3) filed by
Petitioner Daniel Hostetler through counsel. As reason,
Petitioner argues that he has potentially meritorious claims
that have not been litigated in state court; that there is an
unresolved argument that the state court may still consider
these claims that are being diligently pursued in state
court; and that the failure to plead the claims sooner is not
a function of strategy or deliberate delay but due to lack of
access to effective counsel.
was convicted of manslaughter and tampering with physical
evidence. The petition, which was filed on June 21, 2019,
contains five claims - three
ineffective-assistance-of-trial-counsel claims, a challenge
to the voluntariness of his plea agreement, and a
freestanding innocence claim. He states that the petition has
been filed within one year of the Kentucky Supreme
Court's denial of his motion for discretionary
review but that he has filed a belated motion for
cross appeal in the state court with regard to two
ineffective assistance of counsel claims and that a CR 60.02
motion remains pending in state court raising his
freestanding claim of innocence.
has responded (DN 6) that he has no objection to this habeas
action being stayed pending exhaustion of state remedies.
well settled law that federal district courts may stay fully
exhausted habeas petitions while the petitioner exhausts
additional claims in the state courts. See Andrews v.
Horton, No. 4:18-CV-12686, 2018 WL 4637310, at *1 (E.D.
Mich. Sept. 27, 2018) (compiling authority). In doing so, the
Court must consider the apparent merit of the unexhausted
claims and whether the Court would benefit from a state-court
ruling on the unexhausted claims. Thomas v.
Stoddard, 89 F.Supp.3d 937, 943 (E.D. Mich. 2015)
(citing Rhines v. Weber, 544 U.S. 269, (2005)).
Additionally, the Court should consider whether ruling on the
petition as it sits before the Court might preclude the
consideration of additional claims in federal court based
upon the expiration of the one-year statute of limitations
contained in the Antiterrorism and Effective Death Penalty
Act. See 28 U.S.C. § 2244(d)(1). Such
circumstances warrant an abeyance. See Hargrove v.
Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
claims do not appear to be “‘plainly
meritless.'” Wagner v. Smith, 581 F.3d
410, 419 (6th Cir. 2009) (quoting Rhines, 544 U.S.
at 277). Nor does it appear that Petitioner has engaged in
“intentionally dilatory litigation tactics.”
Rhines, 544 U.S. at 278. The Court determines that a
stay is appropriate in this case.
district court determines that a stay is appropriate pending
exhaustion of state court remedies, the district court
“should place reasonable time limits on a
petitioner's trip to state court and back.”
Id. Since Petitioner has already filed a motion for
belated cross-appeal with the Kentucky Court of Appeals and
has a CR 60.02 motion pending in the state trial court, the
Court is satisfied that Petitioner has taken the crucial
first steps necessary to exhaust these claims. Petitioner
need only ask this Court to lift the stay within sixty days
of exhausting his state court remedies. See Id.
“If [ ] the condition of the stay is not met, the stay
may later be vacated nunc pro tunc as of the date
the stay was entered, and the petition may be
dismissed.” Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002) (internal quotation omitted).
on the foregoing, IT IS HEREBY ORDERED that
Petitioner's motion (DN 3) is GRANTED
The Clerk of Court is directed to STAY
proceedings in this case pending further notice.
IS FURTHER ORDERED that within 45
days from entry of the final ruling on
Petitioner's post-conviction actions, Petitioner is
ORDERED to return to this Court and file a
motion asking the Court to lift the stay.
is WARNED that failure to notify the Court
of the resolution of his state-court action within the time
allotted may result in dismissal of this petition.
 According to the petition,
Petitioner's conviction was vacated by the trial court on
a RCr 11.42 motion related to a Brady violation. On
appeal, the Kentucky Court of Appeals vacated and remanded
the trial court's grant of relief. Petitioner filed a
timely motion for discretionary review to the ...