United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
se petitioner Suny Victor filed the above-captioned
petition for a writ of habeas corpus under 28 U.S.C. §
2254 on December 28, 2016. She originally was convicted in
2014 in the Chardon Municipal Court on charges of OVI and
failure to control her vehicle, however, her conviction was
overturned on appeal. On remand, the City of Chardon
(“City”) set a date for a second trial, but
petitioner pled guilty on January 20, 2017 to a minor
misdemeanor charge of disregard of safety, and was assessed a
fine. In this habeas petition, she asserts nine grounds for
relief, all relating to her first conviction, which was
overturned on appeal. She asks this Court to vacate that
conviction and sentence.
was charged on January 11, 2014 with operating a motor
vehicle while under the influence of alcohol
(“OVI”) and failure to control after the car she
was driving went off the road and struck a tree. State v.
Victor, No. 2014-G-3220, 2014-G-3241, 2015 WL 9594363,
at *4 (Ohio Ct. App. Dec. 31, 2015). Ohio State Highway
Patrol Trooper John R. Nemastil, was called to the scene of
an accident on Wisner Road at Mitchell's Mills, in
Chardon, Ohio. Id. at *1. Trooper Nemastil indicated
that although petitioner claimed she had had nothing to
drink, her eyes were red, bloodshot, and glassy, and she
smelled of alcohol. Petitioner failed field sobriety tests
and Trooper Nemastil placed her under arrest. Id. At
the station, she refused to submit to a breath, urine, or
blood test. Id.
represented herself at the jury trial held on June 19, 2014.
Id. at *2. The jurors viewed the cruiser dash cam
video and crash photos taken by Trooper Nemastil.
Id. Petitioner called witnesses, including her
mother, who claimed the roads were bad on the day of her
daughter's accident. Id. The jury returned a
guilty verdict on both charges. Id. Petitioner filed
numerous pro se motions, including a motion for new
trial, but all of her motions were denied. Id. On
July 8, 2014, the trial court sentenced her to 180 days in
jail, with 177 days suspended on conditions. Id. The
court also suspended her driver's license for 180 days
and ordered her to pay a $375.00 fine. Id.
filed a timely appeal and her sentence was stayed while the
appeal was pending. Id. In her sole assignment of
error, she asserted she was denied her Sixth Amendment right
to counsel. Id. She maintained that the trial court
failed to address and obtain an oral or written waiver of her
constitutional right to counsel. Id. The Ohio
Eleventh District Court of Appeals agreed and, on December
31, 2015, they reversed the judgment of conviction and
remanded the case with instructions that the petitioner must
be afforded a new trial in which she is represented by
counsel, unless she knowingly, intelligently, and voluntarily
waives that right. Id. at *5.
City reinstated criminal charges of OVI and failure to
control against petitioner on January 5, 2016. This time,
petitioner filed a written waiver of appointed counsel. She
entered into a plea agreement with the City, and on January
20, 2017, she pleaded guilty to a reduced charge of disregard
of safety, a minor misdemeanor. It appears from the docket
that a fine was imposed as her sentence.
to her plea hearing and sentencing on January 20, 2017,
petitioner filed this petition for a writ of habeas corpus
under 28 U.S.C. § 2254 to challenge the conviction that
was vacated by the Ohio Eleventh District Court of Appeals.
She asserts nine grounds for relief: (1) she was denied the
right to self-representation on appeal and her appellate
counsel was ineffective; (2) she was denied a speedy trial;
(3) she was denied the ability to confront and impeach the
credibility of witnesses; (4) she was denied the right to
present favorable witnesses; (5) she was denied a fair jury
trial; (6) the prosecutor withheld newly discovered evidence;
(7) the prosecutor allowed false testimony to go uncorrected
and misled the jury; (8) the jury's verdict was against
the manifest weight of the evidence; and (9) she was denied
the right to counsel at sentencing.
Standard of Review
after the filing of a petition for habeas corpus, the Court
must conduct a preliminary review of the petition to
determine whether “it plainly appears from the face of
the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing § 2254 Cases
(applicable to § 2241 petitions under Rule 1(b));
see 28 U.S.C. § 2243. If so, the petition must
be summarily dismissed. Rule 4; see Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (district court has the
duty to “screen out” petitions that lack merit on
their face). After undertaking the review required by Rule 4,
the Court concludes that the Petition must be dismissed for
lack of subject matter jurisdiction because Petitioner is not
“in custody” pursuant to the judgment of
conviction being challenged.
habeas petition is legally insufficient for several reasons.
First, petitioner is not in custody for the conviction under
attack. A federal district court may entertain an application
for the writ of habeas corpus only if the prisoner is
“in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §§
2241(c)(3) and 2254(a). The Supreme Court has interpreted
this language to mean “that the habeas petitioner
[must] be ‘in custody' under the conviction or
sentence under attack at the time his petition is
filed.” Maleng v. Cook, 490 U.S. 488, 490-91,
109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (citing Carafas v.
LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d
554 (1968)). The “in custody” requirement has
been very liberally construed to include release on parole,
probation, bail or bond because individuals released under
these conditions are “‘subject to restraints not
shared by the public generally.'” Hensley v.
Mun. Court, San Jose-Milpitas Judicial Dist., 411 U.S.
345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (quoting
Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct.
373, 376, 9 L.Ed.2d 285 (1963)).
is not “in custody” pursuant to the judgment of
conviction she challenges. Her claims are directed to her
first conviction in 2014, which was vacated by the Ohio
Eleventh District Court of Appeals. She could not be
referring to her 2017 conviction as a result of her guilty
plea, because she filed this petition in 2016, prior to her
plea hearing and sentencing.
even if the Court could construe that she was challenging her
current conviction, she gives no indication that she is
“in custody” on that conviction. It appears she
was required to pay a fine. That does not qualify as being
“in custody” for habeas purposes. See Kohn v.
Michigan State Police, No. Civ. 01-71923-DT, 2001 WL
902715, at *2 (E.D. Mich. Jun. 6, 2001) (“Numerous
courts have held that the imposition of traffic tickets or
fines or even the suspension of driving privileges is not a
severe enough restraint on a petitioner's liberty to
satisfy the ‘in custody' requirement of the ...