Boltenhouse v. Warden, London Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ROBERT A. BOLTENHOUSE,
Petitioner, : Case No. 1:25-cv-558
- vs - 	District Judge Jeffery P. Hopkins
Magistrate Judge Michael R. Merz
WARDEN, London Correctional
Institution,
:
Respondent.
DECISION AND ORDER DENYING STAY; REPORT AND
RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Robert Boltenhouse under 28 U.S.C.
§ 2254, is before the Court on Petitioner’s Motion to hold this case in abeyance pending his
exhaustion of state court appeals (ECF No. 13).
Respondent had previously filed a motion to dismiss for lack of exhaustion (ECF No. 7) in
lieu of filing a full return. 	The Court struck that motion because the Order for Answer had
expressly prohibited a motion to dismiss. It has been the experience of this Magistrate Judge that
considering a motion to dismiss separately from full consideration can lead to delay in completing
a case, particularly because District Judge dockets are crowded with reviewing Magistrate Judge
reports and recommendations to which objections have been filed.
In the Answer/Return of Writ, Respondent brings to the Court’s attention that, in fact,
Petitioner has not completed a full round of direct or postconviction appeals in the state courts.
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He must do so before this Court can reach the merits of his case. O'Sullivan v. Boerckel, 526 U.S.
838, 846-7(1999). 	Petitioner himself concedes in the pending Motion for Abeyance that that is
the case.
As Respondent also notes, the Petition here is not a mixed petition because none of
Petitioner’s claims are exhausted. 	Dismissing the case without prejudice is the appropriate
remedy: it will not prejudice Petitioner’s case and it will avoid the incorrect appearance of this
Court’s having pending cases that it does not deal with.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed without prejudice to its refiling when Petitioner has exhausted his available
state court remedies. Because reasonable jurists would not disagree with this conclusion, it is also
recommended that Petitioner be denied a certificate of appealability and that the Court certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.
November 26, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
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objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.
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