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State ex rel. Marcum v. Duchak

United States District Court, S.D. Ohio, Western Division, Dayton

January 23, 2018

STATE OF OHIO EX REL TED MARCUM, Petitioner,
v.
SHERIFF DAVE DUCHAK, Respondent.

          Walter H. Rice District Judge

          SUPPLEMENTAL OPINION, REPORT, AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This case is before the Court on Petitioner's Objections (ECF No. 21) to the Magistrate Judge's Report and Recommendations that (1) Mr. Marcum's request for habeas corpus relief be dismissed without prejudice (ECF No. 16) and (2) that his complaint as to Defendant Stacy Wall be dismissed for failure to state a claim upon which relief can be granted (ECF No. 17) and to the Magistrate Judge's Decision denying appointment of counsel and finding Marcum's motion for class certification to be moot (ECF No. 19). Judge Rice has recommitted these three matters, pursuant to Fed.R.Civ.P. 72(b)(3), for reconsideration in light of the Objections (ECF No. 24).

         Habeas Corpus Relief

         As part of his Complaint under 42 U.S.C. § 1983, filed initially in the Miami County Common Pleas Court, Mr. Marcum sought habeas corpus relief from the conviction on which he is currently serving a sentence in the Miami County Jail. Prior to removal to this Court, Judge William H. Wolff, Jr., sitting by assignment in that court, held that state habeas relief was not available because Marcum had a remedy by way of appeal. After removal and noting that habeas relief is not available in a § 1983 action, the Magistrate Judge recommended dismissal without prejudice until Marcum had exhausted his state court remedies (Report, ECF No. 16, PageID 338).

         Marcum objects that the exhaustion doctrine is not jurisdictional (Objections, ECF No. 21, PageID 354). He is correct; the exhaustion doctrine is not jurisdictional and is thus waivable by the State, Ex parte Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481 U.S. 129 (1987). However, 28 U.S.C. § 2254(b)(3) as added by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214), provides "A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." The warden may waive exhaustion by counsel's conduct which “manifested a clear and unambiguous intent to waive the requirement.” D'Ambrosio v. Bagley, 527 F.3d 489, 496 (6th Cir. 2008). But simple failure to raise the exhaustion requirement does not, by itself, waive that requirement. Id. at 497, citing Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004); Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005); and Rockwell v. Yukins, 217 F.3d 421, 424 (6th Cir. 2000). In the absence of exceptional or unusual circumstances, principles of comity and federalism require that unexhausted claims be decided in the first instance by the state courts even if the State does not raise the defense. O'Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996)(per curiam)(en banc).

         Marcum argues that because it was the Defendants who removed the case to federal court, they should be held to have waived exhaustion by removal. But that would be a forfeiture of the defense, rather than an express waiver, and hence not satisfy the statute. Moreover, the Attorney General of Ohio, who by law represents the State in habeas cases, has never been served with a copy of the Complaint and ordered to answer. Because the State has not expressly waived the exhaustion defense, the habeas portion of the Complaint should be dismissed without prejudice to refiling once exhaustion is complete.

         Marcum also objects to the Magistrate Judge's analyzing the habeas portion of the Complaint as brought under 28 U.S.C. § 2254. He contends his habeas claim should be analyzed under 28 U.S.C. § 2241 or as seeking a common law writ of habeas corpus, which he asserts is authorized by the Suspension Clause (Objections, ECF No. 21, PageID 357-58, ) Actually, § 2241 is the source of habeas jurisdiction for federal judges and § 2254 limits the application of that jurisdiction when the petitioner is a person in custody by virtue of a state conviction. § 2241 may not be used by such a petitioner to avoid the restrictions of the AEDPA. Rittenberry v. Morgan, 468 F.3d 331 (6th Cir. 2006). Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases which are within the judicial power of the United States as defined in the United States Constitution and as further granted to them by Act of Congress. Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Marcum cites no authority for the proposition that federal district courts have the power to issue common law writs of habeas corpus for persons in custody pursuant to state court judgment, except as constrained by 28 U.S.C. § 2254.

         Marcum also objects that his claim is the Common Pleas Court lacked jurisdiction to try him. If he is correct, then his confinement is unconstitutional, but that does not relieve him of the burden of exhausting state court remedies for the lack of jurisdiction claim.

         In the Report, the Magistrate Judge recommended denying a certificate of appealability on the habeas claims because reasonable jurists would not disagree with the conclusion that Marcum should be required to exhaust his state court remedies and also certifying to the Sixth Circuit that any appeal of that portion of the case would not be taken in good faith and should not be permitted to proceed in forma pauperis.. Marcum asks for a certificate, but does not state how reasonable jurists would disagree (Objections, ECF No. 21, PageID 368.)

         Recommended Dismissal of Defendant Stacy Hall

         The Magistrate Judge also filed a Report recommending that claims against Defendant Stacy Hall be dismissed for failure to state a claim upon which relief could be granted (ECF No. 17, PageID 342-43.)

         Marcum objects because he says the Report states the claims against Ms. Wall must be brought in habeas. The Report in question says no such thing. Marcum's claim is that Ms. Wall illegally and unethically advised him to waive his right to counsel. What the Report says is that any claim that this advice made the plea involuntary must be raised in habeas, a proceeding in which Ms. Wall would not be a party.

         Marcum's argument is that it is unconstitutional for a prosecutor to encourage a defendant to waive his right to counsel on analogy to Miranda v. Arizona, 384 U.S. 436 (1966). The result of a Miranda violation is that subsequent statements by a defendant are inadmissible against him or her at trial, not civil liability under 42 U.S.C. ยง 1983. Even if there were civil liability, it could not be asserted until ...


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