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Collins v. Ohio Adult Parole Authority

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

August 12, 2019

SAMUEL W. COLLINS, Petitioner,

          Michael H. Watson Judge.



         This 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.

         Petitioner 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.

         Pursuant 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.

         Facts and Procedural History

         Petitioner 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.)

         On July 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.)

         Petitioner does not, however, allege that he has challenged the imposition of post-release control in the state courts.


         As a 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.

         Before 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.

         Petitioner 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.

         Under 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 ...

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