United States District Court, S.D. Ohio, Western Division
CRAIG D. VALERIO, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
an inmate in state custody at the Chillicothe Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, asserting a
violation of his rights under the Eighth and Fourteenth
Amendments relating to a disciplinary conviction. (Doc. 3).
This matter is before the Court on the petition (Doc. 3) and
respondent's motion to dismiss on cognizability grounds
(Doc. 4), to which petitioner has not replied.
reasons stated below, respondent's motion to dismiss
(Doc. 4) should be GRANTED.
is currently serving a nine-year term of imprisonment on
convictions entered in 2016 by the Warren County, Ohio, Court
of Common pleas for illegal manufacture of drugs, illegal
assembly or possession of chemicals for the manufacture of
drugs, and possession of criminal tools. (Doc. 3, at PageID
27; see also Doc. 4, Exs. 1-3).
only ground for relief, petitioner does not contend that he
is entitled to habeas relief on the basis of constitutional
error occurring in the underlying Warren County criminal
case. Instead, petitioner challenges a prison disciplinary
conviction that resulted in petitioner's placement for a
time in solitary confinement, an increase in his security
classification level (from a Level One to a Level Two), and
his ineligibility for unspecified "institutional
programming." (Doc. 3, at PageID 31). For relief,
petitioner seeks to have his Level-One security status
reinstated and his prison record expunged. (Doc. 3, at PageID
to the validity of any confinement or to particulars
affecting its duration are the province of habeas
corpus." Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). See also Preiser v. Rodriguez,
411 U.S. 475, 498 (1973) (explaining that claims challenging
"the fact or duration of.. . physical confinement"
and "seeking immediate release or a speedier release
from that confinement" lie at the "heart of habeas
corpus"). As such, petitioner's allegations
concerning his prison disciplinary conviction are cognizable
in federal habeas corpus only if the disciplinary conviction
affected the duration of his sentence. Id. See also
Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)
("[W]hen a prisoner's claim would not
'necessarily spell speedier release,' that claim does
not lie 'at the core of habeas corpus,' and may be
brought, if at all, under [42 U.S.C.] § 1983.")
(quoting Wilkinson v. Dotson, 544 U.S. 74, 82
(2005)). Petitioner does not indicate that the challenged
disciplinary conviction resulted in the loss of any good-time
credits or otherwise increased the duration of his sentence.
In the absence of such allegations, petitioner "raise[s]
no claim on which habeas relief could have been granted on
any recognized theory." Muhammad, 540 U.S. at
nothing in the record indicates that petitioner's
disciplinary conviction resulted in the loss of good-time
credits or otherwise lengthened the term of his sentence,
petitioner's sole claim for relief is not cognizable in a
petition for federal habeas corpus. See Id. at 750.
See also Lewis v. Trierweiler, No. 1:16-cv-451, 2016
WL 3027204, at *2 (W.D. Mich. May 27, 2016) (dismissing
§ 2254 petition where sole claim challenged a
disciplinary conviction "[b]ecause the misconduct
conviction affected neither the fact nor duration of
Petitioner's confinement" and thus "d[id] not
raise issues cognizable on habeas review"); Martin
v. Tambini, No. 3:07-cv-3857, 2008 WL 750553, at *3
(N.D. Ohio Mar. 19, 2008) (finding petitioner's challenge
to his disciplinary conviction was not cognizable in federal
habeas corpus where the "disciplinary conviction did not
result in the loss of good conduct time or otherwise lengthen
the term of his confinement").
IS THEREFORE RECOMMENDED THAT:
1. Respondent's motion to dismiss (Doc. 4) be
GRANTED and petitioner's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc.
5) be DISMISSED without prejudice.
2. A certificate of appealability should not issue with
respect to the petition because petitioner has not stated a
"viable claim of the denial of a constitutional
right" or presented issues that are "adequate to
deserve encouragement to proceed further." See
Slack, 529 U.S. at 475 (citing Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)); see
also 28 U.S.C. § 2253(c); Fed. R, App. P. 22(b).
3. With respect to any application by petitioner to proceed
on appeal in forma pauperis, the Court should
certify pursuant to 28 U.S.C. § 1915(a)(3) that an
appeal of any Order adopting this Report and Recommendation
would not be taken in "good faith," and therefore
DENY petitioner leave to appeal in forma
pauperis upon a showing of financial necessity.
See Fed. R. App. P. 24(a); Kincade v.
Sparbnan, 117 F.3d 949, 952 (6th Cir. 1997).
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14