The opinion of the court was delivered by: Judge Patricia A. Gaughan
Memorandum of Opinion and Order
Petitioner Daniel Bowling filed the pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents Vincent Holland (Chief of Cuyahoga County Adult Probation) and Probation Officer Lisa Austin moved to dismiss the Petition. (Doc. 10.) Before the Court is the Report and Recommendation of Magistrate Judge James R. Knepp II (Doc. 37) recommending that the Court grant respondents' motion to dismiss. Petitioner has filed objections to the Report and Recommendation. (Doc. 38.) For the reasons stated below, the Report and Recommendation is ACCEPTED.
Under Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636, the district court reviews de novo the portion of a report of a magistrate judge to which a specific objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.
On October 1, 2007, petitioner was indicted by a Cuyahoga County Grand Jury in a three count indictment charging petitioner with possession of crack cocaine in violation of Ohio Rev. Code § 2925.11(A), drug trafficking in violation of Ohio Rev. Code § 2925.03(A)(2), and possession of criminal tools in violation of Ohio Rev. Code § 2923.24(A). On February 10, 2009, a jury found petitioner guilty of the drug possession and drug trafficking charges.
On March 6, 2009, petitioner was sentenced by the trial court to two years of community control sanctions under the supervision of the adult probation department with the following conditions: 40 hours community service, submit to random drug testing, attend AA/NA/CA meetings twice a week, maintain part-time employment or apply for jobs weekly, and resolve child support arrearages. (Doc. 10-3.) Petitioner appealed his conviction to the Ohio Court of Appeals, asserting eight assignments of error. The appellate court affirmed petitioner's conviction in all respects, except held that the trial court erred in failing to merge the drug possession and trafficking charges. The appellate court ordered a "limited remand" "for the limited purpose of resentencing, at which time the state has the right to elect which allied offense to pursue." (Doc. 10-3.)
At resentencing on February 1, 2011, the state elected trafficking. The hearing was continued to February 11, 2011 and then to March 11, 2011.
Petitioner filed the present petition for a writ of habeas corpus against respondents on March 10, 2011, raising three grounds for relief: "[d]enial of due process (and a fair trial) based on the exclusion of exculpatory evidence coupled with admission of tampered evidence," unreasonable search, and "[d]enial of due process (and a fair trial) stemming from an illegal policy of public corruption."*fn1
At the resentencing on March 11, 2011, the trial court sentenced petitioner to a total of two years of community control sanctions and held that the sentence applied retroactively to March 6, 2009. (Doc. 9-70.) The sentence imposed included previous community service, drug testing, AA/NA/CA meetings, but did not include previously imposed financial conditions. The trial court found that petitioner's case was completely "over" because petitioner's community control sentence was fully served as of March 6, 2011.
Magistrate Judge Knepp recommended that this Court grant respondents' motion to dismiss this habeas petition because petitioner was not "in custody" on March 10, 2011, when his habeas petition was filed.
A federal court has jurisdiction to grant a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 where the petitioner is "in custody pursuant to the judgment of a State court." Steverson v. Summers, 258 F.3d 520, 522 (6th Cir. 2001). The petitioner must be "in custody" under the conviction or sentence at issue at the time the habeas petition is filed. Maleng v.Cook, 490 U.S. 488, 490-91 (1989). A petitioner is not "in custody" when, at the time the habeas petition is filed, the sentence imposed for petitioner's conviction has fully expired. See id., at 492. Further, once the sentence imposed for a conviction has expired, the "collateral consequences" of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack. Id.
Magistrate Judge Knepp reasoned that petitioner was not in custody at the time his habeas petition was filed (March 10, 2011) because petitioner's two year community control sentence, as determined by the trial court ...