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Perotti v. Shelton

United States District Court, N.D. Ohio

October 30, 2017

JOHN W. PEROTTI, Petitioner,



         John Perotti, a state prisoner, filed a motion for discovery to obtain information that he claims would support his petition for habeas corpus under 28 U.S.C. § 2254.[1] The Magistrate Judge, to whom that motion was referred, recommended that the motion be denied.[2] Perotti objects to the Magistrate Judge's order.[3]

         For the reasons that follow, the Court OVERRULES Perotti's objections and AFFIRMS the Magistrate Judge's order.

         I. BACKGROUND

         A. Underlying State Court Convictions

         In 1976, Ohio convicted Perotti of possession of criminal tools, grand theft, a drug violation, and carrying a concealed weapon.[4] He received concurrent sentences of one to ten years in prison on the concealed weapons charge, and six months to five years in prison on each of the other charges.[5] He was released on parole in June 1977.[6]

         In June 1979, Perotti pleaded guilty in Lake County, Ohio, to two counts of vandalism and one count of possessing a weapon while under a disability.[7] For this conviction, the Lake County judge sentenced Perotti to between two and five years in prison on each count, with those sentences to run concurrently to each other and consecutively to his sentence for violating his parole on his 1976 Cuyahoga County convictions.[8]

         Perotti was again released on parole in 1981.[9]

         In 1982, Perotti pleaded guilty in Cuyahoga County, Ohio, to charges of aggravated robbery and receiving stolen property.[10] He received concurrent sentences of five to twenty-five years in prison and one to five years in prison on those charges.[11]

         While incarcerated for his 1982 Cuyahoga County convictions, Perotti was convicted in Scioto County, Ohio, of aggravated assault in 1985 and felonious assault in 1989.[12] He received a sentence of two to five years in prison on the 1985 charge, and twelve to fifteen years on the 1989 charge.[13] He was again released on parole in April 2003.[14]

         B. Federal Conviction & State Parole Violation Proceedings

         In July 2003, Perotti was arrested after he drove a car while intoxicated with a firearm and ammunition in the vehicle.[15] While both state and federal charges were filed against Perotti because of that conduct, the state charges were ultimately dismissed.[16]

         After his arrest for the federal charges, but before he was indicted on federal charges, Perotti was in the custody of the Ohio Adult Parole Authority (OAPA).[17] OAPA attempted several times to conduct a parole violation hearing based on Perotti's new criminal conduct.[18]Unfortunately, the parole revocation hearing was rescheduled several times because of medical or other issues, so it was not held before Perotti was transferred to federal custody to face federal charges.[19] OAPA placed a detainer on Perotti so that he would be transferred back to state custody for a parole violation hearing at the conclusion of his time in federal custody.[20]

         Perotti was convicted in federal court of being a felon in possession of ammunition.[21] He was sentenced to 240 months in prison, with that sentence ordered to run concurrently with any sentence imposed by the state for Perotti's violation of his parole.[22]

         During his stay in federal prison, Perotti alleges that he tried several times to arrange to be transferred to state custody so that his parole violation hearing could be conducted.[23] But OAPA refused to conduct a revocation hearing before Perotti completed serving federal time.[24]

         Perotti remained in federal custody until April 2016. At that point, this Court granted a motion under 28 U.S.C. § 2255 based on the Supreme Court's decision in United States v. Johnson[25] and reduced his sentence to time served.[26]

         After he was released from federal custody, OAPA took custody of Perotti and held a May 2016parole violation hearing.[27] At that hearing, Ohio concluded that Perotti had violated his parole and gave him a five-year continuance, at which point he will be revaluated for parole.[28] According, to Perotti, he was originally given a three-year continuance, but it was increased to five years after he appealed.[29]

         C. Habeas Proceedings

         In April 2017, Perotti filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255.[30]He contends that the parole authorities:

(1) retaliated against him for exercising his constitutional rights;
(2) conspired with his counsel to rely on erroneous information at his revocation hearing;
(3) violated his due process rights by waiting twelve years to hold his revocation hearing;
(4) relied upon a statute that is unconstitutionally vague to continue him in prison after he served his prior sentences;
(5) violated the ex post facto and double jeopardy clauses of the U.S. Constitution;
(6) failed to obey a federal judge's order to run his parole violation sentence concurrent to his federal sentence;
(7) failed to count the time served under his federal sentence towards the sentence imposed for the violation of his parole;
(8) failed to keep accurate records in violation of Title 5, § 552 of the Privacy Act;
(9) failed to hold a parole violation hearing within a reasonable time in violation of state and federal law;
(10) deprived him of access to the law library and his counsel of choice;
(11) deprived him of his rights to a fair hearing and access to the courts;
(12) subjected him to cruel and unusual punishment; and
(13) violated state law by continuing his sentence because he does not meet the criteria in O.A.C. § 5120:1-1-18.[31]

         In support of that petition, Perotti filed a motion asking for discovery.[32] He asked the Magistrate Judge assigned to address his motion to order the State to respond to a series of requests for admissions and to produce certain documents.[33]

         The requests for admissions asked the State to admit to a number of factual statements or legal conclusions related to Perotti's claims.[34]

         The request for the production of documents asked the State to produce a broad swath of documents related to Perotti's prior convictions, the revocation of his parole, the names of parole officers, state parole procedures, personnel files of OAPA employees, other lawsuits against OAPA, statistics and studies of the effects of OAPA policies, and internal OAPA communications.[35] For example, Perotti requested a list of the names of “all parole officers employeed in the Cleveland . . . area from 1975 to the present” and “[c]opies of all court proceedings, judgment entries and rulings declaring [that] the OAPA enforced ex post facto policies against parolees[ ]or required a rehearing of a parole hearing due to statutory or constitutional violations from 1976 to the present.”[36]

         The Magistrate Judge denied his motion.[37] Perotti objects.[38]

         II. ...

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