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Alahverdian v. State

United States District Court, Sixth Circuit

April 28, 2013

NICHOLAS ALAHVERDIAN, Plaintiff,
v.
STATE OF OHIO, et al., Defendants.

REPORT AND RECOMMENDATIONS ON MOTION FOR TEMPORARY RESTRAINING ORDER

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on Plaintiff's Emergency Ex Parte Application for Temporary Restraining Order, Preliminary Injunction and/or Stay of Execution (Doc. No. 5). The requested relief is an order restraining The Honorable Carl Henderson, Judge of the Dayton Municipal Court, and probation officers of that court "from keeping Plaintiff in their custody, that Plaintiff be released from the custody of Defendant Dayton Municipal Court et al.; and that Plaintiff be removed from the Ohio Sex Offender Registry." Id. at PageID 169-170.

The relevant facts alleged by Plaintiff are that he was convicted by Judge Henderson in March 2008 of two sex-related misdemeanor offenses. According to the instant Motion, "[o]n November 26, 2012, Defendant Henderson re-sentenced Mr. Alahverdian to be in the custody of Dayton Probation and to register as a sex offender." Id. at PageID 171. Pursuant to that sentence, probation officers of the Dayton Municipal Court told Plaintiff that he would not be permitted to leave Ohio to attend a settlement conference in Alahverdian v. Rhode Island Dept. of Children, Youth and Families, Case No. 1:11-cv-075, on the docket of the United States District Court for the District of Rhode Island, initially set for April 18, 2013, and now re-set to May 20, 2013. Id. at PageID 172. On April 17, 2013, Plaintiff's counsel in the criminal case, Eric Allen, filed a "Motion for Stay of Execution with the Dayton Municipal Court pending the filing of a habeas action in both federal court and the Ohio Supreme Court." Id. at PageID 173. However, Judge Henderson denied that Motion on April 24, 2013. Id.

Plaintiff brought the instant action against Judge Henderson and twenty-eight others seeking in part relief from the referenced conviction under 42 U.S.C. § 1983.[1] The relief sought by Plaintiff in the instant motion for temporary restraining order is not available in a § 1983 action. Rather, relief from custody in a state criminal case must be by way of habeas corpus under 28 U.S.C. § 2254. Preiser v. Rodriquez, 411 U.S. 475 (1973). Plaintiff's counsel in the criminal case, Eric Allen, is an experienced criminal defense and habeas corpus attorney and appears to have recognized this limitation in his request for stay to Judge Henderson.

Because the Court cannot in a § 1983 action grant the relief sought - release from custody in a state criminal case - the Emergency ...


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