United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Motion to Dismiss of Chae Harris, Warden of the
Warren Correctional Institution (ECF No. 42). Petitioner has
filed an Opposition (ECF No. 49).
Harris reports that Petitioner was confined in his custody
until May 18, 2018, and is thereafter in the custody of the
Ohio Adult Parole Authority serving a term of post-release
control. The Petition names as Respondents the Sheriff of
Preble County, Ohio, and the State of Ohio (ECF No. 3, PageID
37). Although Petitioner was in the custody of Warden Harris
when he filed, he was not confined on the conviction listed
in the Petition as the one on which he sought relief, and on
his Motion the Warden was dismissed as a Respondent (ECF Nos.
5 & 6). The Magistrate Judge concludes Glenn is
sufficiently in custody to invoke habeas corpus jurisdiction
and that the proper Respondent is the Ohio Adult Parole
Authority. Assistant Attorney General Fosnaught has moved for
dismissal on behalf of the Warden, who was the custodian on
the date the Motion to Dismiss was filed, and on behalf of
the Ohio Adult Parole Authority. She does not represent the
Sheriff of Preble County (ECF No. 42, PageID 331, n. 1).
of a sex offender registry as required by state law does not
constitute keeping a person in custody within the meaning of
habeas corpus jurisprudence. Classification under the Ohio
sexual predator statute does not result in custody sufficient
to permit testing by writ of habeas corpus. Leslie v.
Randle, 296 F.3d 518 (6th Cir. 2002). Because
the Sheriff does not have custody of Glenn, he is not a
proper party Respondent and should be dismissed.
September 2013 Glenn was indicted by the Preble County grand
jury on one count of unlawful sexual conduct with a minor
(Indictment, State Court Record ECF No. 41, PageID 215-16).
He was convicted at jury trial and sentenced to one year
imprisonment and five years of post-release control.
Id. at PageID 223-24. Glenn took no direct appeal.
Instead, on October 20, 2017, he filed a motion for delayed
appeal. Id. at PageID 228-29. The Twelfth District
Court of Appeals denied that motion on December 12, 2017, and
a motion for reconsideration on March 8, 2018, explaining
that the delayed appeal was denied because Glenn had not
offered any acceptable excuse for the delay. Id. at
PageID 268-69. The Ohio Supreme Court declined to exercise
jurisdiction over a subsequent appeal. Id. at PageID
filed his Petition for Writ of Habeas Corpus in this Court on
December 27, 2017, pleading three grounds for relief:
Ground One: Petition U.S. Constitution right to counsel was
violated [AND] when no waiver of counsel was executed.
Ground Two: Petition U.S. Constitutional right to due process
was violated when no consent hearing was held to determine
Tier II status.
Ground Three: Petitioner U.S. Constitutional right to due
process was violated when Petitioner was denied to appeal.
(Petition, ECF No. 3.)
One: Lack of Signed Waiver of Counsel
First Ground for Relief, Petitioner asserts he was denied his
right to counsel under the United States Constitution when he
was tried after having waived counsel orally, but without
having executed a written waiver of counsel.
asserts this claim is barred by the statute of limitations
(Motion, ECF No. 42, PageID 336). Petitioner responds that he
has been a ward of the State since ...