Graves v. State of Ohio

Filing 19

Order and Decision Adopting the Report and Recommendation of the Magistrate Judge (re 17 ) and overruling Petitioner's ( 18 ) Objections. Petition for Habeas Corpus is DISMISSED. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 5/1/17. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAYMOND GRAVES,
Petitioner,
v.
MARGARET BRADSHAW, WARDEN,
Respondent.

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CASE NO. 1:14-cv-2697
JUDGE JOHN R. ADAMS

ORDER AND DECISION

This matter appears before the Court on Petitioner Raymond Graves’ objections to the
Magistrate Judge’s Report and Recommendation (“R & R”) recommending dismissal of Graves’
habeas corpus action. Doc. 17. For the following reasons, Graves’ objections are OVERRULED,
and the Court ADOPTS the Magistrate Judge’s Report and Recommendation and DISMISSES the
underlying habeas petition. Doc. 12.
The R & R adequately states the factual and procedural background of this case. Graves
has demonstrated no error in that background, so the Court will not reiterate those sections herein.
I.

STANDARD OF REVIEW
If a party files written objections to a magistrate judge’s report and recommendation, a

judge must perform a de novo review of “those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).

II.

ANALYSIS
The R & R finds that Graves was not “in custody” at the time he filed the underlying

habeas petition; and thus, the Court lacks jurisdiction over the petition. Graves objects, arguing
1) that he was re-sentenced in 2008, which extended his registration requirement as a sexually
oriented offender, and 2) that he was incarcerated when he filed a state petition for writ of habeas
corpus in July of 2010. Doc. 18. Both of these objections are without merit.
The Magistrate Judge accurately set forth the law as to jurisdiction:
A state prisoner may file a § 2254 petition in “the district court for the district
wherein such person is in custody or in the district court for the district within
which the State court was held which convicted and sentenced him.” 28
U.S.C. § 2241(d). The Court of Common Pleas of Ashland County, Ohio
sentenced Petitioner. (Doc. Nos. 8-5, 8-27.) Ashland County is within this
Court’s geographic jurisdiction. See 28 U.S.C. § 115(a).
However, a federal habeas petitioner also must be “in custody” under the
conviction or sentence under attack at the time he filed his habeas corpus
petition. 28 U.S.C. § 2241(c)(3) and 2254(a); Maleng v. Cook, 490 U.S. 488,
490-91 (1989) (citing Carafas v. La Valle, 391 U.S. 234, 238 (1968)). “When
a petitioner’s sentence for a conviction has fully expired, the conviction may
not be directly challenged because the petitioner is no longer ‘in custody’
pursuant to that conviction.” Ferqueron v. Straub, 54 Fed. Appx. 188, 190
(6th Cir. 2002) (citing Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S.
394, 401-02 (2001)). See also Ikharo v. Dewine, 2013 WL 2620264 at * 2
(S.D. Ohio June 11, 2013) (Deavers, M.J.); Thompson v. Gansheimer, 2009
WL 88058 at * 5 (N.D. Ohio Jan. 12, 2009) (McHargh, M.J.). A prisoner who
has been released on parole on his unexpired sentence fulfills the “in custody”
requirement for habeas corpus review. Ikharo, 2013 WL 2620264 at * 2. A
petitioner whose sentence has completely expired prior to the filing of his
habeas corpus petition, however, does not. Id. See also Maleng, 490 U.S. at
492–93. Moreover, “[t]he collateral consequences of a conviction for which
the sentence has completely expired are insufficient to render a petitioner ‘in
custody’ under § 2254(a).” Ferqueron, 2002 WL 31828191, at *1 (citing
Maleng, 490 U.S. at 492).
There is a limited exception to this rule. A petitioner can challenge a prior
conviction if it was used to enhance a current sentence and: (1) the petitioner's
prior conviction was obtained in violation of his Sixth Amendment right to
have counsel appointed to represent him; (2) the petitioner was without fault
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in failing to obtain timely review of a constitutional claim, such as where the
state court refuses to rule on a properly presented constitutional claim; or (3)
the petitioner obtains compelling evidence that he is actually innocent of the
crime after the period of time for direct or collateral review has expired. See
Brown v. Ohio, 2015 WL 5165480, at *4 (N.D. Ohio Aug. 28, 2015) (Adams,
J.) (citing Coss, 532 U.S. at 404–06; Steverson v. Summers, 258 F.3d 520,
524–25 (6th Cir. 2001)).
Doc. 17.
Graves first argues that his resentencing in 2008 extended his registration requirement for
an additional three years. Therefore, he was restrained sufficiently to constitute “custody” for the
purposes of jurisdiction. This argument is without merit. The Sixth Circuit Court of Appeals has
previously considered this issue and held that Ohio’s registration requirement does not sufficiently
restrain freedom as to be considered “in custody.” Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir.
2002). Instead, the registration requirement was a collateral consequence and was not sufficient
to allow Graves to be considered “in custody.” Maleng v. Cook, 490 U.S. 488, 492 (1989) (“The
negative implication of this holding is, of course, that once the sentence imposed for a conviction
has completely expired, the collateral consequences of that conviction are not themselves sufficient
to render an individual “in custody” for the purposes of a habeas attack upon it.”). As such,
Graves’ first objection is overruled.
Graves next argues that he started the state habeas process while still in custody in 2010;
and therefore, he was “in custody” for purposes of this Court’s jurisdiction. This argument fails.
Graves’ state habeas petition was dismissed as moot on September 6, 2011, after he was released
from prison. He did not appeal the dismissal.
It is undisputed that he was favorably released from post-release control on September 20,
2013. Thus, Graves’ sentence fully expired on September 20, 2013. He did not file his petition
for federal habeas relief until November of 2014. Thus, Graves was not “in custody” under the

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conviction or sentence under attack at the time he filed his habeas petition. He fails to demonstrate
that no exception applies here, since there is no evidence that his conviction was used to enhance
a current sentence. Given this, Graves’ second objection is overruled.
III.

CONCLUSION
For the reasons set forth herein, the Court finds no merit to Graves’ objections, and

therefore, those objections are OVERRULED. The Court ADOPTS Magistrate Judge’s R&R.
Doc. 17. Graves’ Petition for Habeas Corpus is DISMISSED.
The Court certifies, pursuant to 28 U.S.C. § 1915(A)(3), that an appeal from this decision
could not be taken in good faith, and that there is no basis upon which to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
DATE: May 1, 2017

/s/ John R. Adams_________________
Judge John R. Adams
UNITED STATES DISTRICT COURT

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