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Martin v. State

United States District Court, S.D. Ohio, Eastern Division

June 5, 2019

HOWARD E. MARTIN, III, Plaintiff,
v.
STATE OF OHIO, et al., Defendants.

          Vascura Magistrate Judge

          ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Magistrate Judge's October 29, 2018, Report and Recommendation (ECF No. 6), which recommended that Plaintiff Howard E. Martin III's “Notice to Appeal” (ECF No. 1) be DISMISSED. The Magistrate Judge screened the claims upon which Plaintiff did not move for summary judgment pursuant to 28 U.S.C. § 1915(e) and recommended that Plaintiff's claims be DISMISSED. The Court hereby ADOPTS the Report and Recommendation in its entirety based on the independent consideration of the analysis therein.

         I. BACKGROUND

         Following an Ohio State Supreme Court judgment relating to his state-court criminal conviction, Plaintiff, Howard E. Martin III, a state inmate who is proceeding without the assistance of counsel, sought to appeal the judgment by filing a document he labeled “NOTICE OF APPEAL.” (ECF No. 1). However, Plaintiff did not include the required filing fee or an application to proceed in forma pauperis. (ECF No. 2). As a result, the Magistrate Judge issued a Notice of Deficiency and advised Plaintiff to proceed by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254, to the extent he sought an order declaring that his state-court criminal conviction was obtained in violation of his rights guaranteed under the Constitution. (ECF No. 3 2-3). Plaintiff subsequently filed his in forma pauperis application along with other documents and attachments, two of which were titled “COMPLAINT.” (See ECF Nos. 4, 5, and 5-1).

         The Magistrate Judge considered these filings together to determine whether they were subject to dismissal under § 1915(e). (ECF No. 6 at 5). After construing Plaintiff's filings liberally, the Magistrate Judge found that Plaintiff may have been seeking to advance the following claims: (1) a direct appeal of a judgment the Ohio Supreme Court entered relating to a state-court criminal case; (2) claims for habeas relief; (3) a First Amendment access-to-courts claim; (4) a civil perjury claim; (5) due process claims for lost property; and (6) state-law attorney malpractice claims. (ECF No. 6 at 5-6).

         Plaintiff timely filed an Objection to the Report and Recommendation. (ECF No. 12, 13, 14). In his objection, Plaintiff seems to have appealed each of the above claims and additionally asserted two more claims: (1) a Sixth Amendment right to a fast and speedy trial claim; and (2) an Eighth Amendment Cruel and Unusual Punishment claim. (ECF No. 13).

         II. STANDARD OF REVIEW

         When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C).

         28 U.S.C. § 1915(e)(2) states that when the Court receives a complaint and an application to proceed in forma pauperis, “[t]he court shall dismiss the case if ... (B) the action ... is frivolous or malicious [or] fails to state a claim on which relief can be granted....” A complaint is frivolous if all of the claims made in the complaint lack an arguable or rational basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint must be dismissed for failure to state a claim upon which relief can be granted if the complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Further, the well-pleaded averments of the complaint (although not the conclusory ones) must be accepted as true for purposes of determining if a complaint would survive a motion to dismiss for failure to state a claim upon which relief can be granted, assuming such a motion were to be filed under Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Finally, the Court keeps in mind the admonition that pro se complaints are to be construed liberally in favor of the pro se party. Haines v. Kerner, 404 U.S. 519 (1972).

         III. LAW AND ANALYSIS

         Plaintiff appears to raise the following objections to the Magistrate Judge's Report and Recommendation: (1) a petition for writ of certiorari to the Supreme Court; (2) claims for habeas relief; (3) a First Amendment access-to-courts claim; (4) a claim for civil perjury; (5) due process claims for lost property; and (6) State-law attorney malpractice claims. In addition to these objections, Plaintiff also seems to present two new claims: (1) a Sixth Amendment right to a fast and speedy trial claim; and (2) an Eighth Amendment cruel and unusual punishment claim.

         A. Petition for Writ of Certiorari to the Supreme Court

         In his initial filing, Plaintiff sought to appeal a decision of the Ohio State Supreme Court. (ECF No. 1). The Magistrate Judge noted in the Report and Recommendation that only the United States Supreme Court has jurisdiction to hear appeals of state-court decisions and advised filing a writ of certiorari with the Court. (ECF No. 6 at 6). In his objection to the Report and Recommendation, it appears Plaintiff instead wishes to file a petition for certiorari to the Supreme Court for review of a decision by the United States District Court for the Southern District of Ohio in which appeal to the Sixth Circuit Court of Appeals was denied. (ECF No. 13 at 8-9). See Martin v. E.W. Scripps Co., No. 1:12CV844, 2013 WL ...


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