Nixon v. Black

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID A. NIXON,
Petitioner,
vs.
WARDEN JENNIFER BLACK,
Respondent.
CASE NO. 5:25-CV-01558
JUDGE PATRICIA A. GAUGHAN
MAGISTRATE JUDGE AMANDA M. KNAPP
INTERIM REPORT AND RECOMMENDATION
On July 22, 2025, Petitioner David A. Nixon (“Mr. Nixon” or “Petitioner”) filed a
petition for writ of habeas corpus under 28 U.S.C. § 2254, asserting seven grounds for relief
relating to his sentence and convictions for burglary, grand theft, and having a weapon under
disability.1 (ECF Doc. 1 (“Petition”).) On August 14, 2025, Petitioner filed a Motion to Hold
Habeas Corpus Petition in Abeyance (“Motion to Stay”). (ECF Doc. 5.) Respondent filed an
opposition to the Motion to Stay. (ECF Doc. 6.) Petitioner did not file a reply.
The Motion for Stay is fully briefed and ripe for review. The undersigned hereby submits
this Interim Report and Recommendation, recommending that the Court DENY the Motion for
Stay.
1 “Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials
for filing in the federal courts.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S.
266, 273 (1988)). The Petition was docketed on July 28, 2025. (ECF Doc. 1.) Petitioner states he placed his
Petition in the prison mailing system on July 22, 2025. (ECF Doc. 1, p. 19.)
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I. 	Federal Habeas Petition
Mr. Nixon raises the following seven grounds for relief in his pending Petition:
Ground One: Denial of counsel and self-representation in violation of the Sixth
Amendment of the U.S. Constitution & Ohio Const.
Supporting Facts: The trial court failed to advise Petition of right to counsel, and
failed to secure a valid written waiver of counsel. 	The trial court then without
proper inquiry, into Petitioner’s written and oral motions to waive counsel and
proceed to trial pro se, denied the Petitioner his constitutional right to self-
representation, 	in 	violation 	of 	the 	Sixth 	Amendment 	to 	the 	United 	States
Constitution, and Article VIII, Section II of Ohio’s Constitution.
Ground Two: Denial of indictment by grand jury in violation of the Fifth
Amendment of the United States Constitution.
Supporting Facts: The April[] 2022 Term of the Portage County grand jury
returned an indictment for Burglary, and the Ass. Prosecutor altered it to charge
Aggravated Burglary to have room to plea bargain. This caused the burglary count
to become void as a matter of law. The trial court lost subject-matter jurisdiction
over the fraudulent count of burglary, placing Petitioner in jeopardy, in violation of
teh [sic] United States and Ohio’s constitutions. The Petitioner discovered through
public records requests and actual indictments, that the grand jury true-billed
Burglary, not the aggravated burglary charged in the indictment.
Ground Three: Insufficient Evidence to sustain a conviction of O.R.C. 2913.02,
Grand Theft.
Supporting Facts: The evidence presented at trial did not support a conviction for
Grand Theft, as the State failed to prove all elements of grand theft beyon[d] a
reasonable doubt. The theft of teh [sic] firearm must be proved that the Petitioner
intended to “permanently deprive” the owner of teh [sic] gun. The firearm never
left the residence, and Petitioner reported the gun to the prosecutor[’]s office
immediately following teh [sic] alleged incident.
Ground Four: Prosecutorial Misconduct, failure to correct false, misleading, and
inflammatory evidence and testimony.
Supporting Facts: The State presented recorded jail call[]s to deceive the jury.
The State knew through record jail calls that the gun did not belong to Joe Horvath,
and allowed Horvath to testify that he owned the gun to gain conviction. The trial
court was made aware that teh [sic] gun in the recorded jail call was not the gun
recovered in the crime, but told the State to “play it anyways” in a sidebar over
defense counsel[’]s objection to admitting the call [] into evidence and playing it
for the jury.
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Ground Five: Denial of Compulsory Process, Subpoena power, evidence, in
violation of the Sixth Amendment to U.S. Const.
Supporting Facts: Trial Court quashed subp[]oenas for key defense witnesses with
no hearing. Trial court denied request for exculpatory cell phone records, and failed
to enforce subpoena power demanding the witness bring cell phone records to trial.
Trial court interfered with questioning of BCI witness to cover-up fraud by the
State. Trial court allowed evidence to be presented by the State that it [k]new to be
false and misleading to the jury.
Ground 	Six: Denial 	of Grand 	Jury Transcript, 	Sixth 	Amendment 	to U.S.
Constitution violation, denial of fair trial.
Supporting Facts: The Grand Jury Transcript was necessary due to the multiple
count two indictments for Burglary and Aggravated Burglary. The States request
for warrant, the indictment, and the public record requests all proved that the grand
jury true-billed burglary, not aggravated burglary stated on indictment. The Grand
Jury Transcript would have shown what charge teh [sic] grand jury actually true-
billed. Petitioner showed a particularized need.
Ground Seven: Denied Sixth Amendment Right to effective assistance of counsel.
Supporting Facts: Petitioner was not satisfied with counsel[’]s performance in
pretrial phase of proceedings. 	Counsel refused to withdraw and the trial court
refused to accept waiver of counsel, thereby forcing counsel on Petitioner. Counsel
failed to subpoena important witnesses[], [f]ailed to show up for [i]mportant
hearings, and failed to investigate at the request of Petitioner, depriving Petitioner
of the effective assistance of counsel.
(ECF Doc. 1, pp. 5-16.)
II. 	Petitioner’s Motion to Stay
Mr. Nixon seeks a stay of the current proceedings, asserting he has pending litigation in
state court that “raise[s] the issue of the trial court[’]s failure to issue a final, appealable order,
and the appellate court[’]s unauthorized exercise of jurisdiction over Petitioner’s direct appeal.”
(ECF Doc. 5, p. 1.) The pending litigation consists of an appeal filed with the “Eleventh District
Court of Appeals regarding the trial court[’]s denial of Motion for Final Appealable Order, Case
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No. 2025-P-0018” 2 and a “Petition for writ of Prohibition . . . in the Supreme Court of Ohio,
Case No. 2025-0609.” (Id.) 	If the state courts grant the relief Petitioner is seeking in those
proceedings, Mr. Nixon asserts that he will file a new direct appeal and a new petition for post-
conviction relief in the state courts. (Id. at p. 2.) In light of these pending state court
proceedings, Petitioner now asks to stay these federal habeas proceedings and hold them in
abeyance under the standard set forth by the U.S. Supreme Court in Rhines v. Weber, 544 U.S.
269 (2005), because he “would be barred from returning to federal court after exhausting his
claims in state court if his § 2254 petition is not stayed and held in abeyance.” (Id.)
In response, Respondent argues that a stay is not appropriate because Mr. Nixon has not
identified unexhausted claims in his Petition or any new federal claims that he intends to present
after the pending state court proceedings are concluded. (ECF Doc. 6, p. 3.) Without such
information, Respondent argues that this Court cannot apply the Rhines standard to “examine the
potential merit of the claims or the cause for not bringing the claims sooner.” (Id. at pp. 3-4.)
Respondent emphasizes that a stay and abeyance is only appropriate in limited circumstances,
and argues that such circumstances are not present in this case. (Id. at pp. 4-5.)
III. 	Law and Analysis
A state prisoner with federal constitutional claims must fairly present them in state court
before raising them in a federal habeas corpus action. 28 U.S.C. § 2254(b)(1)(A); see O’Sullivan
v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). Even where a habeas petitioner presents a “mixed petition” containing
both exhausted and unexhausted claims, comity requires that state courts be given the first
opportunity to review the unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
2 If the Motion for Final Appealable Order is denied by the Eleventh District Court of Appeals, Petitioner states that
he intends to file an appeal with the Supreme Court of Ohio. (ECF Doc. 5, p. 1.)
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If a mixed petition is dismissed while a petitioner pursues unexhausted claims in state
court, however, there is a concern that any exhausted claims will become time-barred under the
one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). That is why the Supreme Court clarified in Rhines that a district court with a
“mixed petition” may stay the case and permit the petitioner to present his unexhausted claims to
the state court before the federal court undertakes review of the petition. 544 U.S. at 277.
A “stay and abeyance” under Rhines is available where the district court determines that:
(1) there was good cause for the petitioner’s failure to exhaust the relevant claims first in state
court; (2) the unexhausted claims are not plainly meritless; and (3) the petitioner has not engaged
in abusive litigation tactics or intentional delay. 544 U.S. at 277. The Rhines Court cautioned
that stay and abeyance should be used sparingly because frequent use could undermine
AEDPA’s goals of “‘reduc[ing] delays in the execution of state and federal criminal sentences’”
and streamlining federal habeas proceedings by encouraging petitioners to seek relief first from
the state courts. Id. at 276-77 (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)).
In this case, the undersigned agrees with Respondent that Petitioner has failed to show
that a stay and abeyance is appropriate under the Rhines standard, which applies only in limited
circumstances where a federal court is faced with a “mixed petition” containing both exhausted
and unexhausted claims. See 544 U.S. at 277. While Mr. Nixon has identified certain ongoing
state proceedings relating to his criminal convictions, he has not explained or shown how those
proceedings are necessary to exhaust any of the grounds for relief articulated in his Petition.
Neither has he identified additional federal habeas claims for relief that he will seek leave to add
to his Petition once the pending state court proceedings are complete. Thus, Petitioner has not
shown that this case involves a “mixed petition” warranting relief under Rhines. See Bowling v.
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Haeberline, 246 F. App’x 303, 306 (6th Cir. 2007) (finding the mere fact that a petitioner “had
an independent proceeding pending in state court did not render his federal petition a mixed
petition” when the “petition contained only claims that had been fully exhausted in state court”).
Beyond his basic failure to show that this case involves a “mixed petition,” Mr. Nixon
has also failed to show more specifically—as required by Rhines—that (1) he had “good cause”
for failing to exhaust the relevant federal habeas claims before he filed the Petition and (2) the
relevant, unexhausted federal habeas claims are not plainly meritless. See 544 U.S. at 277. Like
other federal courts, the undersigned finds Petitioner’s failure to satisfy these two Rhines factors
supports denial of his motion to stay these proceedings and hold them in abeyance pending the
conclusion of the pending state court proceedings. See, e.g., Esters v. Vashaw, No. 1:20-CV-
12882, 2021 WL 6495041, at *2 (E.D. Mich. June 30, 2021).
IV. 	Recommendation
Given the foregoing, the undersigned concludes that a stay and abeyance is not warranted
under Rhines v. Weber, 544 U.S. 269 (2005). Accordingly, the undersigned recommends that the
Court DENY Mr. Nixon’s Motion to Stay (ECF Doc. 5).
December 29, 2025
/s/ Amanda M. Knapp
AMANDA M. KNAPP
UNITED STATES MAGISTRATE JUDGE
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of
Courts within fourteen (14) days after being served with a copy of this document. Failure to file
objections within the specified time may forfeit the right to appeal the District Court’s order. See
Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019); see also Thomas v. Arn, 474 U.S. 140
(1985).
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