Kemp v. Noeth

Background

Gary Kemp, proceeding without a lawyer, asked the court to stay—that is, pause—the litigation deadlines in his petition so he could exhaust certain claims in state court. Exhaustion generally means presenting claims to the state courts before asking a federal court to review them. The respondent had argued that, reading Kemp’s filing liberally, three of his four claims were unexhausted: an ineffective-assistance-of-counsel claim, a newly discovered evidence claim, and an against-the-weight-of-the-evidence claim that could be understood as a legal-sufficiency claim.

Court’s Analysis

The court explained that it had discretion to stay a petition while the petitioner exhausts all claims. It considered whether there was good cause for the failure to exhaust, whether the unexhausted claims might have merit, and whether the petitioner had intentionally delayed the litigation. At that stage, the court could not determine that the claims Kemp wanted to exhaust were plainly meritless. The court also found no evidence that Kemp had engaged in intentionally dilatory litigation tactics.

Ruling and Next Steps

The court GRANTS Kemp’s motion and STAYS the litigation deadlines in the case. Kemp must exhaust his state-court remedies within 30 days of the order and file proof that he has done so. He must notify the court in writing within 30 days after completing exhaustion. The court will then set a schedule for Kemp to file an amended petition and for the respondent to file any supplemental brief opposing it. The clerk was directed to mail the order to Kemp. The order was signed by United States Magistrate Judge Sarah Netburn.