United States District Court, N.D. Ohio, Eastern Division
Jonathan D. Greenberg Magistrate Judge.
ORDER ADOPTING MAGISTRATE'S REPORT AND
C. NUGENT United States District Judge.
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.
and Procedural History
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
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 Bond was revoked based on unknown third state warrant.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.''
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.
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 ...