United States District Court, S.D. Ohio, Eastern Division
DONOVAN E. SIMPSON, Petitioner,
WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.
Chelsey M. Vascura, Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. UNITED STATES DISTRICT JUDGE
October 28, 2019, the Magistrate Judge issued a Report and
Recommendation pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts
recommending that this action be dismissed. (ECF No. 5.)
Petitioner has filed an Objection to the Magistrate
Judge's Report and Recommendation (ECF No. 6.) Pursuant
to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow,
Petitioner's Objection (ECF No. 6) is
OVERRULED. The Report and Recommendation
(ECF No. 5) is ADOPTED and
AFFIRMED. This action is hereby
DISMISSED without prejudice as unexhausted.
Court DECLINES to issue a certificate of
March 11, 2015, this Court conditionally granted
Petitioner's prior petition for a writ of habeas corpus,
vacating his convictions on aggravated murder, murder and
attempted murder subject to the State of Ohio commencing a
re-trial within 90 days. Simpson v. Jackson, No.
2:06-cv-127, 2015 WL 1100733 (S.D. Ohio March 11, 2015),
affirmed by 651 Fed.Appx. 344 (6th Cir. 2016). On
December 7, 2016, Petitioner agreed to be re-sentenced in
lieu of facing a re-trial to an aggregate term of twenty-five
years. The parties agreed that Petitioner would obtain credit
for a total of 5878 days incarceration. (See Decision and
Judgment Entry, ECF No. 1 -1, PAGEID # 16-18.)
Petitioner, however, asserts that his sentence is illegal and
void, that it expired in October 2017, and that the Warden
has wrongfully denied him credit for time served. He objects
to the Magistrate Judge's recommendation of dismissal of
this claim as failing to provide a basis for relief. He
further now also argues that his sentence violates due
process and the Double Jeopardy Clause.
this action remains unexhausted. Before a federal habeas
court may grant relief, a state prisoner must exhaust his
available remedies in the state courts. 28 U.S.C. §
2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349
(1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th
Cir. 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), (c).
Moreover, a constitutional claim for relief must be presented
to the state's highest court in order to satisfy the
exhaustion requirement. Manning v. Alexander, 912
F.2d 878, 881 (6th Cir. 1990). In Ohio, this exhaustion
requirement includes direct and delayed appeals to the Ohio
Court of Appeals and the Ohio Supreme Court. Mackey v.
Koloski, 413 F.2d 1019 (6th Cir. 1969); Allen v.
Perini, 26 Ohio Misc. 149 (6th Cir. 1970). Petitioner
does not indicate that he pursued a timely direct appeal. He
may still pursue a motion for a delayed appeal pursuant to
Ohio Appellate Rule 5(A). Thus, this action is subject to
dismissal on this basis. See Summers v. Warden, 2017
WL 412875, at *5 (S.D. Ohio Jan. 31, 2017) (citing Keeley
v. Warden, Belmont Correctional Institution, No.
2:15-cv-00972, 2016 WL 1642965, at *5-6 (S.D. Ohio April 26,
2016); Ortiz v. Wolfe, No. 2:O8-cv-94, 2009 WL
995622, at *5-6 (S.D. Ohio April 14, 2009)).
as previously discussed, Petitioner's claim mat the
Warden has denied him appropriate credit for time previously
served simply does not provide a basis for federal habeas
corpus relief. "A prisoner has no right under the
federal constitution to earn or receive sentencing
credits." Grays v. Lafler, 618 F.Supp.2d 736,
747 (W.D. Mich. 2008) (citing Moore v. Hofbauer, 144
F.Supp.2d 877, 882 (E.D. Mich.2001) (citing Hansard v.
Barrett, 980 F.2d 1059, 1062 (6th Cir. 1992)). "A
state court's alleged misinterpretation of state
sentencing guidelines and crediting statutes is a matter of
state concern only." Howard v. White, 76
Fed.Appx. 52, 53 (6th Cir. 2003). See also Cool v.
Miller, No. 5:13-cv-1139, 2014 WL 11321655, at *3 (N.D.
Ohio June 30, 2014) ("[T]he Sixth Circuit has recognized
that '[a] state court's alleged misinterpretation of
state sentencing guidelines and crediting statutes is a
matter of state concern only.'") (citations
omitted); Turner v. Moore, No. 1:12-cv-683, 2014 WL
861196, at *I4 (N.D. Ohio Feb. 5, 2014); Pruitt v. Ohio
Adult Parole Authority, No. 1:14-cv-20, 2015 WL 1120002,
at *I2 n.4 (S.D. Ohio March 12, 2015).
these reasons, and for the reasons detailed in the Magistrate
Judge's Report and Recommendation, Petitioner's
Objection (ECF No. 13) is OVERRULED. The
Report and Recommendation (ECF No. 12) is
ADOPTED and AFFIRMED. This
action is hereby DISMISSED without prejudice
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, 135 S.Ct.
2647, 2650 (2015); 28 U.S.C. 2253(c)(1) (requiring a habeas
petitioner to obtain a certificate of appealability in order
to appeal). The petitioner must establish the substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). This standard is a codification of
Barefoot v. Estelle, 463 U.S. 880 (1983). Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing
codification of Barefoot in 28 U.S.C. §
2253(c)(2)). To make a substantial showing of the denial of a
constitutional right, a petitioner must show "that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were
'adequate to deserve encouragement to proceed
further.'" Slack, 529 U.S. at 484 (quoting
Barefoot, 463 U.S., at 893 n.4).
the Court dismisses a claim on procedural grounds, however, a
certificate of appealability "should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Id. Thus,
there are two components to determining whether a certificate
of appealability should issue when a claim is dismissed on
procedural grounds: "one directed at the underlying
constitutional claims and one directed at the district
court's procedural holding." Id. at 485.
The court may first "resolve the issue whose answer is
more apparent from the record and arguments."
Court is not persuaded that reasonable jurists would debate
the dismissal of this action. Therefore, the Court
DECLINES to issue a certificate of
Court CERTIFIES that the appeal would not be
in good faith such that an application to proceed in
forma pauperis on appeal should be
Clerk is DIRECTED to enter FINAL