Simon v. Warden, Belmont Correctional Institution

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Shawn C. Simon, Case No: 2:23-cv-461 Petitioner, Judge Graham v. Magistrate Judge Deavers Warden, Belmont Correctional Institution, Respondent. Order Upon the recommendation of the Magistrate Judge, and there being no objections, the Court adopts the Report and Recommendation (Doc. 14) and grants petitioner’s motion to stay (Doc. 11). The petition shall be administratively STAYED and TERMINATED on the Court’s active docket pending petitioner’s exhaustion of his Ohio remedies. The stay is conditioned on petitioner’s filing of 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 is 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. A certificate of appealability will not issue under the standard set forth in Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). Reasonable jurists 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. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order would not be taken in good faith, and therefore petitioner is denied 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/ James L. Graham JAMES L. GRAHAM United States District Judge DATE: February 23, 2024