The opinion of the court was delivered by: Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court pursuant to its own motion to consider sufficiency of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED without prejudice as unexhausted.
According to the petition, this action involves petitioner's June 5, 2006, convictions in the Muskingum County Court of Common Pleas on breaking and entering and attempted theft, two fifth degree felonies. Petitioner states that he was sentenced to nine months incarceration. Petitioner states that he was unconstitutionally sentenced in Washington County, and then "P.V.ed" on this case in Muskingum County unconstitutionally; however, he does not appear to raise an issue regarding improper revocation of his parole. He never filed an appeal. He filed a state habeas corpus petition with the Ohio Supreme Court, in which he asserted that he was denied the effective assistance of counsel, that his sentence was contrary to law, and that he was unlawfully detained, "P.R.C. contrary to law." Petition, at 3. On February 28, 2007, the Ohio Supreme Court denied his habeas corpus petition.
On March 16, 2007, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. Denial of effective assistance of counsel.
My counsel failed to raise any claim or support to the foregoing arguments, which denied me... the constitutional relief I am entitled to.
2. Sentence Contrary to law.
I should not be in prison for felony fives, nor on this case, due to ground three of this habeas action.
3. The lower court(s) lacked proper jurisdiction to support P.R.C. The lower courts lacked jurisdiction to sentence me, as well as issue P.R.C. which deprived me of my protected rights. P.R.C. was improperly given, which resulted in a second unconstitutional sentence and punishment.
4. My incarceration is unconstitutional.
I am being held against the protections of the Constitution and laws.
Before a federal habeas court may grant relief, a state prisoner must exhaust his available remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under state law to raise a claim by any available procedure, he has not exhausted that claim. 28 U.S.C. §2254(b), (c). Moreover, a constitutional claim for relief must be presented to the state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). But where alternative state remedies are available to consider the same claim, exhaustion of one of these remedies is all that is necessary. A habeas petitioner bears the burden of ...