United States District Court, S.D. Ohio, Eastern Division
DONALD F. LEMASTERS, Petitioner,
OHIO ATTORNEY GENERAL, et al., Respondents.
A. SARGUS, JR., CHIEF JUDGE
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This matter is
before the Court on its own motion to consider the
sufficiency of the petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. For the reasons that follow, the undersigned
RECOMMENDS that this action be
DISMISSED without prejudice as
and Procedural History
challenges his December 2016 convictions pursuant to his
no-contest plea in the Madison County Court of Common Pleas
on fourteen counts of pandering sexually oriented material
involving a minor, nine counts of possession of sexually
oriented material involving a minor, and one count of
possession of criminal tools. He was sentenced to a term of
five years community control. Petitioner did not file an
appeal. However, on December 13, 2017, he filed a petition
for post-conviction relief in the state trial court.
According to the Petition, that action remains
December 21, 2017, Petitioner filed this habeas corpus
petition. As his sole ground for relief, Petitioner
asserts that his sentence violates the Eighth Amendment
because the requirement that he register as a sex offender
for twenty-five years constitutes cruel and unusual
prisoner must exhaust his available remedies in the state
courts before a federal habeas court may grant relief.
Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir.
1993). If a habeas petitioner has the right under state law
to raise a claim by any available procedure, the claim is not
exhausted. 28 U.S.C. § 2254(b), (c). Additionally, a
constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion
requirement. O'Sullivan v. Boerckel, 526 U.S.
838, 844 (1999); Manning v. Alexander, 912 F.2d 878,
881 (6th Cir. 1990). A habeas petitioner bears the burden of
demonstrating that exhaustion of the available state-court
remedies with respect to the claims presented for federal
habeas review. Prather v. Rees, 822 F.2d 1418, 1420
n.3 (6th Cir. 1987).
this action remains unexhausted. Petitioner has never pursued
a direct appeal. He may still do so, pursuant to Ohio
Appellate Rule 5(A). Moreover, Petitioner indicates that he has
raised the same claim he now presents for review in these
proceedings in his state post-conviction petition, which
action apparently remains pending in the state trial court.
it is RECOMMENDED that this action be
DISMISSED without prejudice as unexhausted.
party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s). A judge of this Court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made. Upon proper objections, a judge of this
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge
with instructions. 28 U.S.C. § 636(b)(1).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates
as a waiver of the right to appeal the decision of the
District Court adopting the Report and Recommendation.