Warren v. Potter

Filing 6

Memorandum of Opinion and Order Petitioner's request to proceed in forma pauperis (ECF No. 2 ) is granted. For the reasons set forth herein, his petition is summarily 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 on which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 2/28/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARVIN D. WARREN,
Petitioner,
v.
MARY POTTER, Warden,
Respondent.

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CASE NO. 1:17CV0189

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 2]

Pro Se Petitioner Marvin D. Warren has filed this action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner is incarcerated in an Ohio penal institution,
having been convicted in the Cuyahoga County, Ohio Court of Common Pleas of felonious
assault and domestic violence. State v. Warren, No. CR-13-580087-A.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the district court must
promptly examine a habeas petition 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.” See also
28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see also Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that
lack merit on their face).
Upon review, the Court finds this Petition (ECF No. 1) must be summarily dismissed.
Before a court may grant habeas relief to a state prisoner, the prisoner must exhaust the
remedies available in the state courts. 28 U.S.C. § 2254(b); Hannah v. Conley, 49 F.3d 1193,

(1:17CV0189)
1196 (6th Cir. 1995). “The exhaustion requirement is satisfied when the highest court in the
state in which the petitioner was convicted has been given a full and fair opportunity to rule on
the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (citations
omitted).
Here, the Petition (ECF No. 1) indicates Petitioner raised the grounds he seeks to raise in
his Petition on direct appeal to the Ohio Court of Appeals, State v. Warren, No. 101469, 2015
WL 759145 (Ohio App. 8th Dist. Feb. 19, 2015); however, he was denied a delayed appeal to the
Ohio Supreme Court. State v. Warren, 145 Ohio St.3d 1442 (2016). The Petition (ECF No. 1) is
silent as to the reason his motion for delayed appeal was denied, and the Court must assume the
motion was denied because Petitioner failed to make the requisite showing of adequate reasons
for the delay. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).
Thus, Petitioner was procedurally barred from raising the grounds he seeks to raise in this
Petition (ECF No. 1) in the Ohio state courts. See id. If a procedural bar in the state court exists,
this Court will not consider the claims unless Petitioner establishes adequate cause to excuse the
failure to raise the claims and actual prejudice to him. Id. at 497-98. No such showing is
reasonably suggested by the Petition (ECF No. 1).
Conclusion
Accordingly, Petitioner’s request to proceed in forma pauperis (ECF No. 2) is granted.
For the reasons stated above, his petition is summarily 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

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(1:17CV0189)
that there is no basis on which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b).

IT IS SO ORDERED.

February 28, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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