Davis v. United States of America

Filing 2

Opinion and Order. Petition for a Writ of Habeas Corpus is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing §2254 Cases. The Court further certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 6/6/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RUSSELL DAVIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CASE NO. 1: 17 CV 977
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:

Pro se Petitioner Russell Davis has filed this action seeking a Writ of Habeas Corpus
pursuant to 28 U.S.C. §2241. He asserts he was indicted by the federal government while he was
serving parole in a state felony case, and that he is currently in pre-trial detention pending trial on
the federal charges. In his Petition, he asserts that the Ohio State Parole Board violated his right to
Due Process by lodging a detainer against him for violating his parole in the state felony case
without affording him any sort of hearing. He asks that the Court “set aside, void or cancel the
detainer and warrant lodged against him by the Ohio Board of Probation and Parole and the State
of Ohio.”
District courts must conduct an initial review of habeas corpus petitions. See 28 U.S.C.
§2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court
must deny a petition “if it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief.” Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (applicable to petitions under Section 2241 pursuant to Rule 1(b)). See Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (the district court has “a duty to screen out a habeas
corpus petition which should be dismissed for lack of merit on its face.”).
The Petition must be dismissed.
While Due Process requires that a person accused of violating parole receive a revocation
hearing within a reasonable time after being taken into custody, Morrissey v. Brewer, 408 U.S. 471
(1972), the Due Process right of an alleged parole violator to a hearing does not exist until the
alleged violator is in custody of the entity seeking the revocation. Due Process is triggered only
when the parolee is taken into custody for the parole violation, rather than when the warrant or
detainer is lodged. See Moody v. Daggett, 429 U.S. 78, 86-87 (1976); Cotten v. Davis, 215 F.
App’x 464 (6th Cir. Fed. 8, 2007). Since Petitioner does not allege he has been taken into custody
pursuant to the parole violation warrant, he has no Due Process right to a hearing.
Conclusion
Accordingly, the pending Petition for a Writ of Habeas Corpus is denied and this action is
dismissed pursuant to Rule 4 of the Rules Governing §2254 Cases. The Court further certifies,
pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good
faith.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: June 6, 2017
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