United States District Court, S.D. Ohio, Eastern Division
A. Sargus, Jr. Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner, has filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) 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
moves this Court for leave to proceed in forma pauperis.
(Doc. 3.) Because Petitioner has paid the required filing
fee, that motion is DENIED as moot.
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Court (“Rule 4”), 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 because he has failed to exhaust his claims.
Accordingly, the Magistrate Judge RECOMMENDS
that Petitioner's claims be DISMISSED without
challenges his convictions in the Court of Common Pleas for
Franklin County, Ohio for aggravated robbery, kidnapping, two
counts of murder, and one count of aggravated murder. (Doc.
1, at PAGE ID # 1.) It appears that the state appellate court
upheld those convictions on September 27, 2018.
(Id., at PAGE ID # 2.) It also appears that
Petitioner attempted to file an appeal of that determination
in the Ohio Supreme Court, but it was denied as untimely.
(Id.) Petitioner subsequently filed a motion for
delayed appeal in the Ohio Supreme Court. (Id., at
PAGE ID # 13.) The on-line docket maintained by the Clerk of
the Ohio Supreme Court reveals that Petitioner's motion
for delayed appeal remains pending. State of Ohio v.
Kurtz, 2019-1563, Ohio Supreme Court, November 12, 2019.
On November 20, 2019, Petitioner filed his petition for
federal habeas relief in this Court by placing it in the
prison mailing system. (Doc. 1, at PAGE ID # 32.)
has failed to exhaust his claims. A state prisoner must
exhaust his available remedies in the state courts before a
federal habeas court may grant relief. 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, the claim is not exhausted. 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.
O'Sullivan v. Boerckel, 526 U.S. 838, 844
(1999); Manning v. Alexander, 912 F.2d 878, 881 (6th
Cir. 1990). A habeas petitioner bears the burden of
demonstrating exhaustion of the available state court
remedies with respect to the claims presented for federal
habeas review. Prather v. Rees, 822 F.2d 1418, 1420
n.3 (6th Cir. 1987).
case, Petitioner acknowledges that he did not file a timely
appeal of the state appellate court's September 27, 2018,
determination to the Ohio Supreme Court. Nevertheless,
Petitioner still has a state law procedure available to raise
his claims in the Ohio Supreme Court- a motion for a delayed
appeal to the Ohio Supreme Court pursuant to Ohio S.Ct. Prac.
R. 7.01(A)(4). Indeed, he has availed himself of that
procedure and filed a motion for delayed appeal. That motion
remains pending. Accordingly, Petitioner's claims have
not been exhausted.
the Magistrate Judge RECOMMENDS that the
petition be DENIED without prejudice and
that this action be DISMISSED.
party objects to this Report and Recommendation
(“R&R”), that party may, within fourteen days
of the date of this R&R, file and serve on all parties
written objections to those specific proposed findings or
recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge
of this Court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. Upon proper
objections, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or
may recommit this matter to the Magistrate Judge with
instructions. 28 U.S.C. 636(B)(1).
parties are specifically advised that failure to object to
this R&R will result in a waiver of the right to have the
District Judge review the R&R de novo, and also
operates as a waiver of the right to appeal the decision of
the District Court adopting the R&R. See Thomas v.
Arn, 474 ...