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Harris v. Clipper

United States District Court, N.D. Ohio, Eastern Division

March 28, 2017

WALTER LEE HARRIS, Petitioner,
v.
KIMBERLY CLIPPER, Respondent.

          Jonathan D. Greenberg Magistrate Judge.

          ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION

          DONALD C. NUGENT United States District Judge.

         This matter comes before the Court upon the Report and Recommendation (ECF #15) of Magistrate Judge Jonathan Greenberg issued on December 28, 2016. The Magistrate Judge recommends that the Petition for Writ of Habeas Corpus filed by Petitioner, Walter Lee Harris, pursuant to 28 U.S.C. § 2254 (ECF #1) be dismissed without prejudice.

         Factual and Procedural History

         On October 17, 2016, prior to his conviction and sentence, Harris filed the instant habeas petition and raised five grounds for relief, summarized as:

"1. Plaintiff alleges complaint, I'm being unlawful detained.
2. Was unlawful search and arrest.
3. Bond was revoked based on unknown third state warrant.
4. Waiting retrial violates Plaintiff speedy trial rights, subjects him to Double Jeopardy.
5. Violation of Constitution rights, Fourth, Fifth, Sixth, the Eighth, Fourteenth Amendments.''

         (ECF #1).

         On October 28, 2016, Harris was found guilty of eight counts of rape in violation of Ohio Rev. Code § 2907.02(A)(2); five counts of sexual battery in violation of Ohio Rev. Code § 2907.03(A)(5); eight counts of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(4); four counts of gross sexual imposition in violation of Ohio Rev. Code § 2907.05(A)(1); one count of attempted rape in violation of Ohio Rev. Code § 2923.02/2907.02(A)(2); and one count of attempted sexual battery in violation of Ohio Rev. Code § 2923.02/2907.03(A)(5). (ECF #9). On November 22, 2016, Harris was sentenced to a prison term of 11 years. Id. On December 21, 2016, Harris filed a notice of appeal to the Eighth District Court of Appeals of Ohio. That appeal is still pending. See Public Docket for State v. Harris, CA-16-105284.

         Report and Recommendation

         The Magistrate Judge recommended that this petition be dismissed without prejudice. He found that the petition could not be granted because Harris's habeas claims are unexhausted. At this time, his direct appeal to the state appellate court is still pending. Therefore, Harris has not fairly presented his constitutional claims through the requisite levels of state appellate review to the Ohio Supreme Court. Because all of the claims are unexhausted, this is not a "mixed petition." Further, Harris has failed to demonstrate both good cause for his failure to exhaust his claims in the state courts and that his unexhausted claims are potentially meritorious. For the ...


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