Valdez v. Warden
Opinion and Order signed by Judge James S. Gwin on 1/13/16. The Court, for the reasons set forth in this order, denies the petitioner's writ for habeas corpus under 28 U.S.C. Section 2254 and dismisses this action without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The Court further certifies that an appeal from this decision could not be taken in good faith pursuant to 28 U.S.C. Section 1915(a)(3). (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WARDEN, MARION CORRECTIONAL
CASE NO. 1:15 CV 2702
JUDGE JAMES S. GWIN
OPINION AND ORDER
On December 28, 2015, petitioner pro se Henry Valdez, an inmate at the Marion
Correctional Institution, filed the above-captioned petition for writ of habeas corpus under 28
U.S.C. § 2254. Valdez challenges his convictions, pursuant to a guilty plea, of rape and gross
sexual imposition. For the reasons stated below, the petition is denied and this action is dismissed.
A federal court may entertain a habeas petition filed by a person in state custody only on
the ground that he is in custody in violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a). In addition, petitioner must have exhausted all available state
remedies. 28 U.S.C. § 2254(b).
As Grounds for the petition, Valdez asserts: 1) the trial court lacked subject matter
jurisdiction, denying him due process and equal protection; 2) the trial court did not advise him of
his appeal rights, denying him due process and equal protection; and, 3) the trial court sentenced
him without requisite findings under Ohio law, denying him due process and equal protection. It
is apparent of the face of the petition that Valdez has an action pending in the Ohio Court of
Appeals in which he raises the issues set forth in Grounds 2 and 3. Thus, without regard to the
potential merits of these Grounds, Valdez has not yet exhausted his state court remedies. The
petition is thus premature.
Accordingly, this action is dismissed without prejudice pursuant to Rule 4 of the Rules
Governing Section 2254 Cases. Further, 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 on
which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253.
IT IS SO ORDERED.
Dated: January 13, 2016
s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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