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Glenn v. Warden, Warren Correctional Institution

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

June 20, 2018

DUSTIN GLENN, Petitioner,
v.
PREBLE COUNTY SHERIFF DEPARTMENT AND STATE OF OHIO Respondents.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This 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).

         Warden 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).

         Maintenance 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.

         Procedural History

         In 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 282.

         Glenn 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[1]] 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.)

         Analysis

         Ground One: Lack of Signed Waiver of Counsel

         In his 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.

         Statute of Limitations

         Respondent 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 ...


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