United States District Court, S.D. Ohio, Eastern Division
SAMUEL W. COLLINS, Petitioner,
OHIO ADULT PAROLE AUTHORITY,  Respondent.
Michael H. Watson Judge.
ORDER AND REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of
Petitioner's Motion for Leave to Proceed in forma
Pauperis. (ECF No. 1.) Upon consideration, the Court
finds the Motion is meritorious, and, therefore, it is
GRANTED. It is ORDERED that
Petitioner will be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who
render services in this action shall do so as if the costs
had been prepaid.
has filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. (ECF No. 1-2.) Petitioner
seeks release from confinement pursuant to a state court
judgment in a criminal action. This case has been referred to
the Undersigned pursuant to 28 U.S.C § 636(b) and
Columbus' General Order 14-1 regarding assignments and
references to United States Magistrate Judges.
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Court (“the Habeas
Rules”), the Court must conduct a preliminary review to
determine whether “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” If it does so appear,
the petition must be dismissed. Id. Rule 4 allows
for the dismissal of petitions which raise legally frivolous
claims, as well as petitions that contain factual allegations
that are palpably incredible or false. Carson v.
Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). For the
reasons that follow, it plainly appears that Petitioner is
not entitled to relief. Accordingly, the Undersigned
RECOMMENDS that this action be
DISMISSED WITHOUT PREJUCIE as unexhausted.
and Procedural History
states that he was convicted of burglary and theft pursuant
to a plea agreement entered in the Court of Common Pleas for
Franklin County, Ohio. (ECF No. 1-2, at PAGE ID # 9.) He
indicates that he was sentenced on January 3, 2012, to a
sentence of five and half years, and that he has
“completed [his] whole sentence. (Id., at PAGE
ID # 9, 16.) He further indicates that he did not file an
appeal. (Id., at PAGE ID # 10.)
29, 2019, the Court docketed Petitioner's unsigned and
undated petition. (Id., at PAGE ID # 22.) In that
document, Petitioner alleges that he is entitled to federal
habeas relief because he “was placed on PRC for 3 years
after [he] had completed [his] sentence of 5½ years. .
.” (Id., at PAGE ID # 16.) He further alleges
that “they gave me 5 ½ years and that's what
I thought I had to do. I took a plea deal.”
(Id., at PAGE ID #14.) Petitioner seeks a
“writ of habeas corpus for wrongful incarceration . . .
for (PRC).” (Id., at PAGE ID #13.)
does not, however, allege that he has challenged the
imposition of post-release control in the state courts.
preliminary matter, the Magistrate Judge notes that Rule
2(c)(5) of the Habeas Rules provides that a petition must
“be signed under penalty of perjury by the petitioner
or by a person authorized to sign it for petitioner under 28
U.S.C. § 2242.” Petitioner has failed to comply
with this procedural requirement. Even if Petitioner had
complied with that requirement, however, the Magistrate Judge
finds that he has failed to exhaust his claims.
a federal habeas court may grant habeas corpus relief, a
state prisoner must exhaust his available state court
remedies. Castille v. Peoples, 489 U.S. 346, 349
(1989); Silverburg v. Evitts, 993 F.2d 124, 126
(1993). If a habeas petitioner has the right under state law
to raise a claim by any available procedure, he has not
exhausted that claim. 28 U.S.C. § 2254 (b). Moreover, a
constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion
requirement. O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999); 28 U.S.C. § 2254(c). A habeas
petitioner bears the burden of demonstrating that he has
properly and fully exhausted his available state court
remedies with respect to the claims he seeks to present for
federal habeas review. Prather v. Rees, 822 F.2d
1418, 1420 n. 3 (6th Cir. 1987). Petitioner has failed to
meet that burden here.
appears to claim that he was unlawfully released on
post-release control after he had already served his entire
sentence. To the extent Petitioner alleges that his sentence
has fully expired, a habeas corpus action in the Ohio courts
can be used to challenge actions taken by the OAPA when they
result in a person being confined after jurisdiction over him
has expired. Brewer v. Dahlberg, 942 F.2d 328,
337-40 (6th Cir. 1991) (citing In re Anderson, 380
N.E.2d 368, 369 (Ohio Ct. App. 1978)). Petitioner does not
allege that he has filed a habeas action in the state court.
Ohio law, a writ of mandamus is also available if a
petitioner can demonstrate: (1) that a clear legal right to
relief exists; (2) that the respondent has a clear legal duty
to perform the requested act; and (3) that no plain and
adequate remedy exists in the ordinary course of the law.
State ex rel. Berger v. McMonagle,451 N.E.2d 225,
226-27 (Ohio), cert. denied, 464 U.S. 1017 (1983).
Ohio courts have heard petitions for mandamus that challenge
the actions of the OAPA. See Brewer v. Dahlberg, 942
F.2d 328, 335-36 (6th Cir. 1991) (collecting cases regarding
mandamus petitions and the OAPA); see also State ex rel.
Mapson v. Ohio Adult Parole Authority,535 N.E.2d 296,
297 (Ohio 1989) (per curiam) (petitioner did not have
sufficient evidence to prove retaliatory motive for parole
denial); Rodgers v. Capots, No. 93-3397, 1993 WL
483476, at *1 (6th Cir. Nov. 23, 1993) (denial of habeas
corpus petition appropriate when petitioner did not exhaust